1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ...€¦ · are sworn -- these are questions and...
Transcript of 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ...€¦ · are sworn -- these are questions and...
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
_____________________________________________________________
JAMES B. TURNER and JOANNEK. LIPSON, husband and wife,
Plaintiffs,
v.
LONE STAR INDUSTRIES, INC.,ON MARINE SERVICES COMPANY,LLC.,
Defendants.
)))))))))))))
C13-01747-TSZ
SEATTLE, WASHINGTON
December 6, 2013
Jury Trial
Volume 5 of 10
_____________________________________________________________
VERBATIM REPORT OF PROCEEDINGSBEFORE THE HONORABLE THOMAS S. ZILLY
UNITED STATES DISTRICT JUDGE_____________________________________________________________
APPEARANCES:
For the Plaintiff: Thomas H. Hart, IIILaw Offices of Thomas H. Hart207 E. 1st N. StreetSummerville, SC 29483
Chandler H. UdoBergman Draper & Ladenburg PLLC614 First Avenue, Fourth FloorSeattle, WA 98104
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For the DefendantON Marine Services:
For the DefendantLone Star:
Robert G. AndreEmily H. GantAaron P. RienscheOgden Murphy Wallace PLLC901 Fifth AvenueSuite 3500Seattle, WA 98164
Terry HallWolfstone Panchot & Bloch1111 Third AvenueSuite 1800Seattle, WA 98101
Keith AmeeleFoley & Mansfield300 South Grand AvenueSuite 2800Los Angeles, CA 90071
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EXAMINATION INDEX
EXAMINATION OF: PAGE
BARRY CASTLEMAN DIRECT EXAMINATIONBY MR. HART
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CROSS EXAMINATIONBY MR. HALL
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CROSS EXAMINATIONBY MR. ANDRE
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REDIRECT EXAMINATIONBY MR. HART
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JAMES ROCK DIRECT EXAMINATIONBY MS. GANT
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CROSS EXAMINATIONBY MR. HART
164
REDIRECT EXAMINATIONBY MS. GANT
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RECROSS EXAMINATIONBY MR. HART
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EXHIBIT INDEX
EXHIBITS ADMITTED PAGE2137 923038 157
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THE COURT: I've been handed a proposed limiting
instruction. It's not clear to me whether this is agreed to,
or proposed by one side and objected to.
MR. ANDRE: I gave it to the other side this morning,
and I didn't raise the limiting instruction during the course
of Dr. Brodkin's testimony yesterday. If you recollect,
during my cross examination of Dr. Brodkin he started
volunteering, without my prompting, that he looked at a study
that was not with respect to a Ferro product, and that would
have been the Washborne study. I cut him off, continued my
examination, and sat down.
Then Dr. Brodkin, during Mr. Hart's redirect examination,
twice started to talk about that Washborne study. I objected
again. Your Honor sustained the objection. Mr. Hart didn't
delve any further into it. I think there is too much
prejudice. He was desperately wanting to talk about that
study. I think if we give a limiting instruction like this,
it's very focused, it's based on Your Honor's order that was
entered yesterday and no reference to the Washborne study.
THE COURT: I think I understand your position. Mr.
Hart, what's your view?
MR. HART: Your Honor, I think during your ruling you
indicated that it could not be used as primary evidence.
However, if reference was made to it or somehow some
reference that there were no other studies, it may open the
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door, and it would be something that would be proper comment
by a witness.
The questions, as I recall them -- and I was just handed
this before Your Honor stepped out so I haven't had time to
reflect the transcript accurately that we received last night
-- but I believe the question was: You're aware of no
evidence that hot tops release asbestos. He answered, yes,
there's a study. And counsel said what study? And it went
on for a number of questions and he referred to -- and he
said it was by another company. Counsel did not make any
motion at that time to strike. He delved into it for a few
questions, is my recollection. And he continued on and did
not make any motion to Your Honor at that time.
Later on in his same questioning of -- still the cross
examination -- the question, he raised the matter again, and
the witness answered truthfully. Yes, there is evidence. It
is from another company, but there is evidence. And he did
not comment on the Washborne study. I cautioned him that
Your Honor had excluded that. But in order to answer the
question truthfully, he had to state that there was evidence.
So, I think the doctor did everything he could to not
mention the Washborne study while still telling the truth.
And I think it was a fair comment. The jury doesn't know
anything about the Washborne study.
THE COURT: I don't think it was mentioned, was it?
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MR. HART: Not at all, Your Honor.
THE COURT: Well, I'll defer decision as to whether
I'm going to give any kind of limiting instruction, and I'll
look at the transcript sometime this morning.
MR. ANDRE: Thank you, Your Honor.
MR. HALL: I want to follow up very briefly with our
conversation at the end of the day yesterday with respect to
the Curtis deposition. We have not found a precise case with
respect to the Ninth Circuit. We do believe that there are
cases, federal court cases, specifically the Sixth Circuit,
that are pertinent and relevant to this issue. What I would
like to do is, over the weekend, provide -- file supplemental
authorities. I think that they can still show the video.
THE COURT: All right. Well, I'm not going to permit
it unless and until you provide me with authority, and based
on that authority I allow it. And I'm doubtful I'm going to
allow it unless it's pretty persuasive Ninth Circuit
authority. Because the rule talks about a party, and the
party here is the plaintiff. And the plaintiff was not
represented at that earlier deposition. So that will be my
ruling unless and until you persuade me to the contrary.
Bring in the jury.
MR. HALL: If we're able to do so we could put those
depositions on as part of our case.
MR. HART: If they persuade you that you might want
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to consider changing your mind, I have additional argument to
make that I won't make now.
THE COURT: You're ahead you don't need to make them
now.
(The following occurred in the presence of the jury.)
THE COURT: Call your next witness, please.
MR. HART: Yes, Your Honor, at this time the
plaintiffs would move into evidence Exhibit No. 505, which
are sworn answers to interrogatories by the defendant
ON Marine Services Company, Inc., LLC, Ferro Engineering
Division. They were filed in this case and signed August 8,
2013.
And we'd also move into evidence the attachments to those
interrogatories which have been marked in the trial as
Exhibits 506, 512, 513, 514, 515, 516, 517, 518, 519, 520,
521, 524, 525.
THE COURT: Any objection, counsel?
MR. ANDRE: The only ones we objected to, Your Honor,
there were two newspaper articles that were part of that
group. We didn't think putting newspaper articles in is the
proper subject for an evidentiary document in this case.
THE COURT: Were they exhibits to the answers to the
interrogatories?
MR. ANDRE: They were part of the answers to the
interrogatories.
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THE COURT: These are answers of the interrogatories
of your client?
MR. ANDRE: That's right, Your Honor.
THE COURT: I'll admit all the exhibits referenced by
counsel.
MR. HART: Thank you, Your Honor. May I publish
certain limited portions of those?
THE COURT: Certainly. It's in evidence. You can
publish any exhibit that's been admitted during the trial.
MR. HART: Ladies and gentlemen, good morning. These
are sworn -- these are questions and sworn answers that were
provided to us in this case. The first question was:
Did you ever sell, supply, and/or distribute hot tops to
Bethlehem Steel in Seattle, Washington during the years 1970
to 1976? There is some legal statements. Then without
waiving its objections: The defendant did manufacture and
sell certain asbestos-containing products for use with hot
tops to Bethlehem Steel in Seattle at various times during
the years 1970 to 1976.
Question No. 2. Did you ever manufacture, assemble, sell,
supply or otherwise put in the stream of commerce hot tops
that contained asbestos after 1969? Answer, after the legal
matters: Defendant did manufacture and sell certain
asbestos-containing refractory products for use with hot tops
to Bethlehem Steel in Seattle at various times during the
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years 1970 to 1976.
Question No. 3. If your answers to Interrogatories No. 1
or 2 were anything other than an unqualified no, please
describe with particularity every asbestos-containing hot top
product that you manufactured, assembled, sold, supplied, or
otherwise placed in the stream of commerce during the years
1970 to 1976. Response: Without waiving objections,
defendant may have manufactured and sold the following
asbestos-containing products to Bethlehem Steel in Washington
from 1970 to '76.
And probably you can better follow along -- this is
question No. 3. Ferroboard liners. Certain Ferroboard
liners contain 6 percent amosite or combination amosite and
chrysotile asbestos, depending on customer needs and
requirements. Asbestos-containing Ferroboard liners were
stacked on a wooden pallet then covered with a 6 mil shrink
wrap. Shipping labels with a designation C and D and Ferro
Engineering may have accompanied the product.
Asbestos-containing Ferroboard liners were tannish in color,
brick-like in structure, rectangular in form, which varied in
length and width depending on the size of the hot top, and
were manufactured with crease lines for folding the liner
into the proper shape. There were no markings on this
product other than the product number.
Then you see question No. 4. If your answer to
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Interrogatory 2 is anything other than an unqualified no,
please list the suppliers of the asbestos fibers incorporated
into your hot top products during the years '70 to '76.
The response: In general, asbestos fibers contained in
certain of defendant's products were purchased from Carey
Canadian, Canadian Johns Manville Corporation, National
Gypsum, North American Asbestos Corporation, Clark Asbestos
and International Fiber Corporation.
No. 8. Did warnings or instructions of any kind accompany
any of your hot top products described in your answer to
Interrogatory No. 3? If yes, please describe the content of
the warning or instruction. Then it references the label,
I'll show you in a moment, that was shown yesterday. And I'd
like to point out that there was no record of the precise
dates of implementation of the caution label with respect to
individual products.
The next question was: Please provide the names of each
trade or professional organization that you were a member of
prior to 1976. And then the answer, among other things they
state: Oglebay Norton Company, which as a result of a series
of mergers is now ON Marine Services Company, LLC, was a
member of the National Safety Council of 1949 to 2015. Ferro
Engineering was not a member of the National Safety Council.
Exhibit 513. The minutes of the meeting of the Oglebay
Norton and Ferro Engineering division personnel. January 16,
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1969. And the persons in attendance are listed. GAP opened
the meeting stating that the Ferro sales in 1968 reached an
all time high of approximately $18,400,000. On the second
page, I'll refer you to the third paragraph. Referring to
SWE by initials, he stressed that flat Ferroboard and XOP hot
tops were items that provided a high profit margin and that
additional effort would be concentrated on these lines.
Two paragraphs below that, JCC again discussed the
problems related to exothermic topping and gave information
regarding our possibilities of acquiring the output of Altan
in Oswego. Further investigation is necessary as we have not
heard back from the intermediary in this project. He also
reported that some progress was being made but a lot of
additional investigation was necessary with respect to the
possible new type backing for Ferroboard liners. There was
quite a discussion on the use of asbestos and the problems
related to asbestosis and respiratory ailments.
And according to the interrogatories, this document was
found in the company files. And the handwriting on here was
original when provided to us. Copy to, looks like H. Sheets,
10/17/66 from the Sunday Times, Asbestos Recognized As a
Cancer Risk. That's exhibit, ladies and gentlemen, 520.
Exhibit 519 is another article, copy to H. Sheets,
10/17/66: Chat With the Doctor. Even Asbestos Has Its
Dangers. Asbestos is a substance used in a great variety of
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industrial products. Can be very dangerous to people who
come in contact with it.
The next there it describes what asbestos is and states
that reaction occurs in lungs. Ultimately normal lung tissue
is replaced by fibrous tissue and cancer is possible. It
describes the disease, how much asbestos is there. It
continues down. The disease progresses slowly so that we may
now be seeing the results of exposure as long as 30 years
ago. Experts conjecture that the rate will be much higher
30 years from now. And that was 1966. It talks about people
working in the industry. Many others, though, can have
casual but just as dangerous exposure simply by living near
an industrial or construction site.
It talks about symptoms. More importantly, cancer of the
lungs occurs in about 13 percent of such victims, and the
death rate from cancer of the stomach, colon and rectum is
unusually high, even though no one knows why these organs are
affected. Doctors are also mystified by the appearance of a
rare tissue tumor, mesothelioma, which is found increasingly
in asbestosis victims. They do not know if it is the result
of a prolonged exposure or whether a casual exposure can
produce it too. The tumor was found in 12 of 300 workers in
the industry who were examined after their death.
Usually the case is diagnosed by x-rays of the lungs. It
can be discovered also by finding asbestos bodies in the
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sputum. And it describes those. No one has discovered a
method of treatment for the condition, which is considered
invariably fatal. The only prevention suggested is special
precautions for people constantly exposed to asbestos, such
as masks, air filtration, and improvement of environmental
conditions. It is also suggested that people not ordinarily
exposed to asbestos avoid any contact with the material when
it is in use, as when insulation is installed in a new home.
Your Honor, that concludes the portion of the documents we
wish to publish at this time.
We would call Dr. Barry Castleman to the stand to testify
next.
MR. HALL: Your Honor, am I correct that the
documents were only offered as against -- not offered as
against Lone Star?
MR. HART: That's correct, Your Honor.
BARRY CASTLEMAN
Having been sworn under oath, testified as follows:
THE CLERK: For the record, state your full name
please and spell your last name.
THE WITNESS: My name is Barry Castleman,
C-A-S-T-L-E-M-A-N.
THE COURT: Can we have an address for the record,
Mr. Castleman?
THE WITNESS: 4406 Oxford Street, Garrett Park
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Maryland, two Rs, two Ts.
DIRECT EXAMINATION
BY MR. HART:
Q Dr. Castleman, would you describe your profession to the
ladies and gentlemen of the jury, please?
A I'm a public health worker. My field is toxic substances
control.
Q What do you do in your field?
A I get involved in efforts to protect workers and the
public in general from toxic substances through information,
through regulations, implementation and development of
regulations to protect public health. And that would include
legislative efforts as well. Those kinds of things.
Q All right. And in your career have you consulted with the
United States Government concerning toxic substances?
A Yes.
Q And have you consulted specifically concerning asbestos?
A Yes.
Q Have you consulted with governments throughout the world
on the subject of asbestos and its toxic effects on people?
A Yes, I have.
Q Now, doctor -- I call you doctor. Will you tell the
ladies and gentlemen of the jury your education please, sir?
A My bachelor's degree is in chemical engineering from Johns
Hopkins University in Baltimore.
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A masters -- that was 1968. A master's degree is in
environmental engineering with air pollution control also
from Johns Hopkins. And my doctorate is in occupational and
environmental health policies, a doctor of science degree
from the Johns Hopkins School of Public Health.
Q Will you tell the ladies and gentlemen of the jury the
subject of your masters thesis please, sir?
A My masters thesis, completed in 1971, was called Asbestos
Effects on Health.
Q And after that time were you engaged in any work where you
advised the public on the hazards of asbestos?
A Yes.
Q Tell the ladies and gentlemen of the jury about that,
please.
A Well, my first job after getting a master's degree was to
work as an air pollution control official for the Baltimore
County Department of Health. And in the course of that I
sent out warnings to mechanics not to use compressed air
hoses to blow out brake assemblies, warning them that the
dust contained asbestos and could cause cancer.
I got involved in surveys at a local brewery and
distillery and found that they were using asbestos filters.
Through microscopic analysis we demonstrated that the filters
in the distillery were contaminating the gin with asbestos,
and persuaded those companies to stop using asbestos filters.
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Those were the kinds of things that -- some of the things
I did in that job.
Q Did you take efforts to attempt to get information to
users of asbestos products, information about the hazards of
those products?
A Yes. While I was there I testified at a Senate hearing.
I brought in a five-pound sack of asbestos I had bought that
week at a hardware store. This is 1973. And the only
marking on the bag was the price. And I pointed out to the
Senate committee that this was unacceptable that these kinds
of products were being sold to the public in this way.
This is the kind of thing I tried to raise awareness about
in terms of community exposure to asbestos.
Q All right. Now, that was 1973?
A Yes.
Q All right. Now, the testimony in this case is that Jim
Turner went to work for Bethlehem Steel in 1973. Do you
understand that?
A Yes.
Q All right. And so do you have a -- based on your master's
thesis and the work that you have done prior to that time and
since that time, do you have an understanding of what the
knowledge of asbestos hazards was in the industries that used
asbestos in 1973?
A I think I have a pretty good idea about that, yes.
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Q Okay. And what work have you done -- you mentioned you
have a doctorate degree. What was the subject of your
doctorate thesis?
A It was called Asbestos an Historical Case Study of
Corporate Response to an Industrial Health Hazard.
Q And what does that title mean? Explain what you were
addressing in your thesis.
A I was looking at the history of knowledge about asbestos
and disease, the published, publicly available knowledge, and
the knowledge that was specifically available to corporations
in this country.
And looking at the corporate response, whatever
documentation I had about the corporate response, I attempted
to analyze this as a case study in public health's failure to
prevent a preventible disease.
Q And your practice, or the field in which you engage your
efforts is called public health; is that correct?
A Yes.
Q And it's aimed at protecting members of the public,
whether they be in a workplace, a home, or any other place,
is that fair?
A Right. My field of toxic substances control, occupational
and environmental health, there's maternal and child
healthcare. There's lots of branches of public health in
trying to identify ways in which people's health can be best
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protected through the way they live and the protection
against things like toxic substances.
Q And as a result of your investigations, your master's and
your doctorate thesis, had you come to form an opinion
concerning Ferro Engineering and Pioneer Sand and Gravel
concerning what knowledge was available to them to protect
users of their products from asbestos exposures?
A Yes.
Q And what is your opinion, sir? Was there information
available so that they could have prevented exposures to
their products by users?
MR. HALL: Objection, leading.
THE COURT: Overruled. It calls for yes or no.
A Yes.
Q Explain your opinion, please.
A Well, there was an abundant body of publicly available
literature on the hazards of asbestos and disease, and
certainly by the 1970s. This included popular writings and
publications in safety publications and legal publications
and lots of others, in addition to a vast body of medical and
scientific literature.
Government regulation was only beginning, however, in the
1970s, but this additionally fueled media interest as stories
started to come out about these new government regulatory
agencies, the Environmental Protection Agency and the
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Occupational Safety and Health Administration, starting to
develop regulations on asbestos once they came along in the
1970s.
Q And you were just in the courtroom when I published
Exhibit 518, "A Chat With a Doctor. Even Asbestos Has Its
Dangers"?
A Yes.
Q Was that information generally available to companies if
they desired to look for it?
A Sure. I mean, the technical information would have been
easily available if they just sent somebody with a high
school education down to a medical library to look up what
was known about the hazards of asbestos. In one afternoon I
think the individual could have come back with quite a lot.
Q And the actual exhibit was found in the files of Ferro
Engineering, do you understand that?
A Yes.
Q So that information certainly was, in fact, available to
Ferro Engineering, correct?
A Yes.
Q Now, was that type of information also available to Lone
Star or its predecessor company concerning the hazards of
asbestos when it was selling it in 1973 to Bethlehem Steel?
A Absolutely.
Q How would they have learned it if they didn't have this
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article in their files?
A They could have picked up the phone and called up the
state health department, the State Department of Labor and
Industries, or whatever it was called, could have sent
somebody down to a medical library who knew how to spell
asbestos and ask the librarian how to look these things up.
If the person wasn't used to or familiar with how to look
things up in the medical libraries, they all had reference
librarians there. The hard part is asking the question.
Getting the answer wouldn't have been hard at all.
Q Was it generally understood that asbestos diseases were,
in fact, preventible in 1973?
A Yes.
Q Now, your thesis addressed an historical case study of
corporate response to an industrial health hazard. What does
the corporate response mean?
A Well, it means -- the fact that there was all this stuff
published in the medical journals begs the question, well,
did American industry know about this? Did the corporations
that manufacture asbestos products and used asbestos
products, how much did they know about the fact that this
body of knowledge, this substantial body of knowledge was
accumulating in medical journals?
And through various documents, some of which were publicly
available and some of which only became available through
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litigation, this picture starts to emerge of companies doing
pre-employment exams, medical examinations of people they
hire, of periodic medical examinations that the same
companies performed on their workers, looking for
occupational diseases caused by worker's compensation claims
involving asbestos disease that some companies had. Medical
monitoring of their workers. Air monitoring. Analyzing the
concentrations of dust in the air where hazardous dust such
as asbestos were used in the workplace. So there were a
variety of ways. The participation in industry trade
associations where companies in the same line of business
would get together to talk about such ordinary things as the
standardization of language in describing their products, but
also the common problems that they were starting to have
because they used asbestos in manufacturing their products
like brake linings or insulation, for example.
And these are the kinds of things that made information
available to companies, and the recording of these documents
correspondence between people within a company about warning
labeling on products and compliance with government
regulations. These documents collectively provide a picture
of the knowledge that was available to companies.
Q All right. So on one hand you've investigated what
doctors and scientists knew as reflected in the published
literature over time; is that correct?
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A Yes.
Q And you've gone back how far in looking at articles of
discussing asbestos disease and what doctors knew?
A The earliest publications were in the 1890s.
Q And in addition to what was publicly known and printed in
those journals, you've investigated what various members of
the industry knew at times; is that correct?
A Yes.
Q And is it fair that different companies reacted different
ways to this knowledge?
A Yes.
Q And did some companies, in fact, do some research?
A Yes.
Q And did some companies, in fact, do some testing?
A Sure.
Q Did some companies, in fact, place warning labels on their
products before 1970?
A A few, yes.
Q Okay. So do you have an understanding, based upon your
review of the corporate response, what a prudent company
could have learned, had they chose to investigate?
A Yes.
Q Do you have an understanding as to what a prudent company
could have learned had they chose to test before 1970?
A Yes.
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Q And do you have an understanding as to what a prudent
company could have done to alert users of the products they
were selling before 1970?
A Sure.
Q And would those methods have prevented the disease,
mesothelioma, 35 years later?
A Well, it might not have prevented every case, but it would
have prevented many cases. Because the risk is proportional
to the amount of exposure that the workers had.
Q Now, I want to go through how you came to these opinions
in just a moment. But before I do that, have you consulted
with me on other cases on the subject of asbestos?
A Yes.
Q And have you consulted with some other attorneys on that
subject?
A Yes.
Q Have you consulted with other organizations on the subject
of asbestos? You mention the government. Correct?
A Right. About half a dozen government agencies of the
federal government.
Q And you mentioned some international countries. You've
done work there too?
A I mentioned that in general without listing a bunch of
countries, yes.
Q Okay. And what are some of the other groups that you
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consulted with in your profession, sir?
A In the last five years I've helped, as a consultant,
drafted documents published by the World Bank and the World
Health Organization on asbestos, mainly on the subject of
asbestos substitutes in fiber cement construction materials,
which constitutes the main use of asbestos in the world
today.
Q All right. Now the jury has heard some mention of the
Consumer Product Safety Commission?
A Yes.
Q And its ban on joint compounds in 1977?
A Asbestos-containing joint compounds.
Q Yes, sir. Thank you for correcting me. Did you play any
role in that, sir?
A I did.
Q Explain that to the jury, please.
A I had already become an independent consultant. By the
summer of 1975 Dr. Selikoff's group published an article in
Science Magazine noting the very high levels of exposure
associated with the sanding and sweep-up of these products in
the ordinary course of their use. Selikoff also gave the
media the names of the products he had tested, including some
which didn't have any asbestos at all. And when I read this,
I went to the people at the Natural Resources Defense Council
with whom I worked and I said, we should petition the
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government to ban asbestos in these products. We then
proceeded to draw up a petition, legal and scientific, and
filed that. And eventually proceeded to get asbestos banned
in these products in 1977 by the Consumer Product Safety
Commission.
Q And in essence what was the basis for your request that
asbestos be banned? Was it just because you didn't like it?
A The basis was the levels of exposure were quite high. The
peak exposures exceeded the short-term exposure limit in the
asbestos regulations, the 1972 OSHA asbestos regulations. So
we anticipated there would be very high exposures and
correspondingly a number of people would get cancer from
these exposures, just consumers, let alone workers who would
be at even greater risk individually.
And so we felt -- and because there were products on the
market that were already asbestos-free serving that purpose,
we felt that this was an open-and-shut case for government
regulation.
Q And that agency, the Consumer Product Safety Commission,
had authority to regulate goods used in the home by
consumers, correct?
A They did.
Q They didn't have the authority to regulate the workplace
like OSHA, is that fair?
A That's correct.
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Q And joint compounds are sometimes referred to as joint
cements; is that correct?
A Yes, I think so.
Q And what is a joint cement? Describe that to the jury.
A It's a patching compound that's used when you have sheets
of drywall and you want to make it look like a smooth wall.
So where the two sheets are nailed up and they're against
each other, then along that crack you want to put some kind
of material that you can then sand smooth so that the whole
thing looks flush after it's painted over.
Q And some of the joint cements were sold in bags; is that
correct?
A Yes.
Q And you would add water and mix it?
A Some were sold as powders like that. And others were sold
already mixed with water, so that at least the hazardous
operation of mixing it wouldn't be added to the other
hazardous operations associated with the use of the product.
Q But the powdered ones you would add water to them and they
would harden, correct?
A Yes.
Q And were they similar to asbestos insulating cements?
A Yes.
Q How were they similar?
A Well --
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MR. HALL: Objection, Your Honor. Beyond the scope
of this particular witness's expertise.
MR. HART: I can establish a foundation, Your Honor,
if you would like.
THE COURT: Why don't you go ahead.
Q Obviously you knew about joint cements, correct, sir?
A Right.
Q Do you have an understanding, from a public health and
toxicological perspective, the composition of asbestos
insulating cements?
A Yes.
Q Tell the jury how asbestos insulating cements and joint
cements were similar. And if they were different, tell us
that, too.
MR. HALL: Same objection, Your Honor.
THE COURT: Overruled. You may answer.
A Well, sometimes water would be added to these products
when they were applied. They'd certainly be smoothed over
the various shapes as a kind of a semi-solid type of material
that could be made into whatever shape, if it was a pipe
elbow or something like that. So in that sense it could be
shaped by hand in a similar way when the material was being
used. And both of these types of products tended to contain
about five to ten percent of asbestos.
Q Okay. They both had similar amounts.
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Did they have similar qualities in terms of potential
dangerous exposures when they're being mixed?
A Yes.
Q And the Consumer Product Safety Commission did not have
authority to regulate the workplace, correct?
A Correct.
Q Were there efforts made to ban asbestos insulating cements
in the workplace?
A They were actually banned as an air pollution hazard by
the Environmental Protection Agency. The insulating cements
and the molded insulation products like pipe-covering
asbestos was banned in those products in 1975.
Q Okay. Now, what -- have you been asked to teach
concerning your profession, sir?
A Yes. From time to time I'm asked to speak at schools of
public health, medical schools and other universities.
Q Do you sometimes lecture outside the school setting on
your subject?
A Yes. I appear from time to time at the scientific
conferences, that sort of thing.
Q Okay. Now, how much of your time in terms of percentage
of your time is spent doing work like you're doing today?
A I average about one trial a month. It's been that way
since I started doing this in 1979.
Q And in between the trials do lawyers for the other side
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that have, from the other side, do they sometimes ask to take
your deposition?
A Yes.
Q And you give depositions when requested?
A I do.
Q Now, what -- how do you spend the rest of your time?
A International public health work. I work with people in a
lot of countries, India, Brazil, and other countries. Last
year I spent the last month of the year in India talking to
governmental officials about restricting the use of asbestos
and banning asbestos. So the use of asbestos is still pretty
much out of control in major countries, all over Asia in
particular.
Q Have you been successful in some of your efforts
internationally?
A Yes. We've gotten asbestos banned in over 50 countries.
Q How do you support yourself in doing your international
work concerning asbestos?
A Mainly because I also get involved in these cases. So I
can spend most of my time working on things that pay little
or nothing.
Q Now, have you published articles dealing with asbestos
hazards?
A Yes.
Q Tell us about those please, sir.
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A I've written about the international scope of the problem
of asbestos, about the history of the asbestos problem, about
occupational exposure limits for asbestos in the workplace
air, published in medical and scientific and public health
journals.
Q All right. And have you published any books on asbestos?
A Yes.
Q Is this one of them?
A Yes.
Q What is the title of this?
A The book is called "Asbestos, Medical and Legal Aspects".
And you're holding the 5th edition.
Q What does it mean, 5th edition?
A The book was largely identical to my doctoral thesis and
it was published in 1984. And it's been revised and expanded
four times with the additional emergence and inclusion of
historical information about the corporate response to the
problem of asbestos.
Q All right.
MR. HART: Your Honor, may I approach the witness?
THE COURT: You may.
Q Did I just hand you a copy of your book, doctor?
A Yes.
Q Tell the ladies and gentlemen of the jury basically how
the book is constructed and what you're trying to convey in
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your book, sir.
A Well, in the beginning I talk about the history of
knowledge about asbestosis. And the second chapter is about
cancer and asbestos. And then the third chapter is about
compensation. Fourth chapter is about standards and efforts
to implement public health protection against asbestos
exposure. Then I talk about asbestos products in particular
as opposed to asbestos mining and asbestos manufacturing. I
talk about product use and the literature on the hazards of
asbestos product use.
There's a chapter, one chapter contributed by someone else
on the availability of non-asbestos substitutes in insulation
and other products going back a hundred years or more. And
then there is chapters on corporate knowledge, on bystander
exposure household and neighborhood, and bystander
occupational exposure. Then there's kind of a wrap-up --
well, there's one chapter on the methodology I use, the
sources I consulted in doing this kind of research. And then
a final chapter on where we stand today, which also had to be
revised a number of times over the 20 years that the five
editions were written.
Q Now, let's talk about the first subject you had there, the
historical development of knowledge about asbestos. The jury
has heard Susan Raterman talk about the Merewether and Price
paper of 1930. Are you familiar with that?
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A Yes.
Q What information was available before that, just
generally, that asbestos was dangerous?
A There have been publications of the chief inspector of
factories, government reports in England, identifying
asbestosis, or rather lung scarring from asbestos as a cause
of lung disease, potentially fatal lung disease in a number
of workers. There were reports in 1917, 1918 in U.S. medical
journals, radiology journals, where doctors were starting to
use the chest x-ray as a way of diagnosing lung disease, and
publishing the chest x-ray films of workers exposed to
different types of dusts, including asbestos.
Also 1918, the U.S. Government published a report on
mortality from dusty trades. It was actually written by an
insurance actuary named Frederick Hoffman. Hoffman wrote
about deaths in the asbestos industry in England from lung
disease, and said it was generally the practice of American
and Canadian insurance companies to not sell insurance to
asbestos workers because they were seen as bad risks. It
wasn't until the next decade that the word asbestosis appears
in the medical literature, in the 1920s.
And then there are a number of cases published in the
British Medical Journal, and this is what led the factory
department in Britain to do the Merewether survey where they
did, for the first time, look at the prevalence of asbestosis
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among people who were actively employed in the asbestos
industry to see how widespread this disease was among people
that were working in the industry.
Q And what did they find out concerning the prevalence of
the disease?
A They found that, overall, 26 percent of over 300 workers
examined had asbestosis. They found that none of the people
with less than five years had asbestosis. And so Merewether
wrote that this was a disease that had what he called a
maturation period that, no matter how massive the exposure
was, it was a delay of years before anybody would develop any
signs of illness.
And Merewether also advised, because of this delayed
lethal danger for a product that had no warning properties,
that the workers be educated to what he called a sane
appreciation of the risk.
He recommended various -- in this report they also talked
about the dust controls in general and specific to a number
of industries and products.
Q And what is the term we use today to describe what Dr.
Merewether in the 1930s called the maturation period?
A Latency.
Q Latency. So that was known back then?
A Yes.
Q And you indicated that Dr. Merewether reported that the
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asbestos exposures had no warning properties?
A He didn't put it that way. But he said that the workers
needed to be educated to a sane appreciation of the risk.
Q Okay. Sane appreciation of the risk. And what does that
mean?
A Well, that means that just because you work with this
stuff for years and it hasn't hurt you doesn't mean it isn't
going to hurt you from what you've already breathed, or that
continuing exposure isn't going to be a danger to you. And
just because it doesn't give you headaches, nausea, visual
disturbances or eye irritation or anything else, if it seems
just like the dust in a carpet in this courtroom, to you,
that doesn't mean it's really that harmless.
Q All right. And so there was no -- nothing to warn a
worker that the dust was not innocuous?
A Nothing about the dust, nothing intrinsic to the dust
itself. It wasn't like some of the solvents you have when
you apply paint and other things that let you know that
they're bad for you. They can hurt you.
Q So I've kind of summarized things you've said here a
little bit -- the jury has seen me do this -- I've got your
name at the bottom of this page. So we're talking about Dr.
Merewether and this maturation period. There are no warning
properties that you just described.
A Right.
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Q And warned workers about the sane appreciation of the
risk. Is that a fair summary of what you just testified to?
A Yes.
Q When Susan Raterman was here, she described that the
second part of Dr. Merewether and Price's paper discussed
some methods of prevention. Do you recall that, sir?
A Right.
Q And she outlined these items here. Are those accurate to
your recollection?
A They are.
Q And she talked about education and warning. Is that what
you were referring to, both Dr. Merewether and the engineer
Price agreed that workers need to be told about the hazards
of asbestos?
A Right. That's fundamental. If you want workers to wear
respirators and if you want workers to do other kinds of
things that might slow down their work in order to make sure
that the dust collectors are properly connected and there
aren't obvious leaks in the system, you need to tell them how
harmful this stuff is and how it can hurt you in order to get
them to take seriously the need to observe these precautions.
Q How widely spread were Dr. Merewether's and Price 's
findings?
A This report was among the most widely cited publications
in the literature on asbestos and disease. It was the first
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attempt to see how widespread the disease was among people
occupationally exposed to asbestos. It was the subject of
editorials in the biggest medical journals in England, the
British Medical Journal and The Lancet, the world's oldest
medical journal. They are in every medical library I've ever
walked into.
Q Even in the United States?
A I'm talking about the United States in particular, yes.
Q Were Dr. Merewether and Price's paper reprinted in the
United States?
A That's another thing. Merewether published a largely
identical paper in the Journal of Industrial Hygiene
published in the United States a few months after submitting
the Merewether and Price report to the British Parliament.
So he was actually good enough to come over here and publish
something substantial describing his findings.
Q And so the Journal of Industrial Hygiene, was that where
someone would go to look at methods of protecting workers
from industrial toxins?
A Right. It's a journal that was published since 1919 in
which I found in a number of medical libraries, major medical
institutions around the country.
Q Now, were the same findings that Dr. Merewether recorded
and the same methods of preventing disease also being
reported elsewhere during the 1930s?
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A Yes. There were surveys in 1935 in the United States
published by the Metropolitan Life Insurance Company,
published by the state of Pennsylvania in 1935, finding 25 to
over 50 percent of the workers examined in the asbestos
industry had asbestosis.
There was a similar report by the U.S. Public Health
Service in 1938, doing air sampling in the plants and medical
evaluations, and recommending what they call a tentative
limit for exposure to dust in such workplaces in order to
limit the risk of asbestosis.
Q Were there, in fact, textbooks published discussing the
diseases caused by asbestos in the 1930s?
A Yes. The one you are holding was published in 1938, it's
called "Silicosis and Asbestosis". And it was edited by Dr.
Anthony Lanza of Metropolitan Life and the author of articles
on asbestosis.
Q And did Dr. Lanza report in this publication how workers
could be exposed to asbestos?
A Well, he talked about the industries that used asbestos
and the nature of its being an inhalation hazard.
Q And were asbestos cement products being discussed by Dr.
Merewether and Lanza in the 1930s as being a potential source
of exposure to workers?
A Yes.
Q How about asbestos mill board or asbestos board-type
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products?
A Yes, the same.
Q Were any other diseases, besides asbestosis, being
discussed in the literature and in Dr. Lanza's book in the
1930s?
A Yes. Starting in 1935 there started to appear case
reports of individuals who had died with both asbestosis and
cancer of the lung. And the authors of these reports
published in the United States and England raised concern --
lung cancer was a lot less common then than now -- and they
raised concern that maybe the asbestos was capable of causing
cancer as well as this lung scarring disease, asbestosis.
Then by 1938 a German author titled his paper, "The
Occupational Cancer of Asbestos Workers." That article was
published in abstracts or summaries, English-language
summaries in the United States by the end of the year in
1938.
The Lanza book you were holding also has a chapter by the
author, by Gloyne, G-L-O-Y-N-E, a Dr. Gloyne. And he was the
author of two reports in the literature by 1938 of asbestos
and cancer of the lung in workers that he had seen at
autopsy.
Q And he discussed that relationship between asbestos and
the ultimate disease, cancer?
A Right. That was mentioned in his chapter in Lanza's book
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in 1938.
Q So would it be fair to summarize, by the end of the 1930s
it was well established that asbestos could cause disease and
death in workers through asbestosis, and there was beginning
to be indications that cancer was a consequence of exposure
to asbestos?
A Yes. More in the beginning the Germans were already
accepting it as a compensable occupational disease according
to an article published at the beginning of 1939.
Q For like workman compensation purposes?
A Right.
Q So if you worked with asbestos in Germany and developed
lung cancer, you were entitled to compensation because they
believe they were related?
A That's what was reported in the beginning of 1939 in the
most common journal in Germany, the German Medical Weekly.
Q And was that information in Germany -- I guess that's the
beginning of the rise of Nazism and all of that -- but was
that type of information available in the United States?
A Yes. Well, some of the German literature itself was
available in the United States, and even in the middle of the
war, by which time German doctors were making a link between
mesothelioma and asbestos exposure. In 1943 this was
published in Germany. Within nine months an abstract or
summary appears in the Bulletin of Hygiene published in
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England. They must have been bouncing the journals through
Switzerland or Sweden. But the Brits were reading those in
the middle of World War II and publishing abstracts or
English-language summaries of articles in the German
literature.
Q So the first mention of a disease we now know as
mesothelioma was presented in 1943?
A Well, if that was the first time that asbestos was linked
to mesothelioma, it was a report of 29 deaths in which
asbestosis had played a role. And the doctor reported that
four of them involved lung cancer, two more involved primary
cancers of the pleura. And he said both the lung cancers and
the pleural cancers were, in his opinion, occupational
cancers.
Q All right. And did -- in the United States, what
publications were there concerning asbestos and its
relationship to cancer?
A The Journal of the American Medical Association had an
editorial in 1944 listing asbestos as one of the known or
suspected causes of occupational cancer. In 1949 the Journal
of the American Medical Association had an editorial just
about asbestosis and cancer of the lung. There they reported
on figures published by the British Factory Inspector earlier
that year, to the effect that the Brits were aware of 235
deaths in which asbestosis had played a role, and of these,
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31 of these men, individuals, had cancers of the lung and
pleura, or 13 percent. The normal rate of lung and pleural
cancer in general autopsies was about one percent, the
editorial wrote, so this was a strikingly high rate of the
cancers of the lung and pleura among individuals dying who
had asbestosis. In other words, you would have expected two
or three out of 235, and there were 31 such cases.
Q So that was an unusually high incidence?
A Right. And if you do statistics, you see that happening
is a chance occurrence like flipping a coin a number of times
and getting heads every time. Well, it's less than one in a
million.
Q And, again on the screen, if you could look on your screen
there, doctor, have I correctly summarized your reports in
the literature here? Mesotheliomas first discussed in 1943,
the Journal of American Medical Association discussed
asbestos as an occupational cancer in 1944. Then in 1949 the
same journal discussed asbestosis and cancer and called
particular attention to that?
A These are just highlights. Again, by the end of the '40s
there was over 80 publications that talked about asbestos and
cancer of the lung.
Q What is an epidemiological study?
A That's a statistical study of a defined human population.
So these are the kinds of studies we construct in order to
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see if people who drink a lot of coffee are at risk of some
kind of disease as a result of that. So you try to
construct, just briefly, a study group that has exposure to
the exposure you're trying to study, and a group of people
that's as identical as possible except for that exposure.
Then you try and do some kind of estimate looking at the
actual morbidity or mortality of both the exposed group and
the control group. You then do statistics on your findings
to see whether there's a significant excess or not of any
kind of risk.
Q And a lot of the studies you've talked about so far dealt
with doctors and scientists looking at people working in
factories, is that correct?
A Right.
Q In the 1940s were there any discussions about cancer
occurring in people who didn't work in a factory but used an
asbestos product, maybe an insulating product or something?
A Yes. There was a report in 1942 in, I think, the Archives
of Pathology, a couple of doctors in New York reported that
they had seen two cases of asbestosis in five years in
running their pathology clinic and hospital. And these two
individuals who had asbestosis both had cancer of the lung.
So the authors of this report thought that was quite
striking, and they referenced the earlier literature, most of
it from our country, England, and Germany, and said that it
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looks like lung cancer is an occupational disease. People
who work with asbestos. And these two individuals were
described as career insulation workers. Their exposure came
from pipe covering and other kinds of insulation product.
Q Let's go to the 1950s, if we can. You told us by the end
of the '40s there were eight publications just on asbestos
and cancer and there were others discussing how asbestos is
either dangerous or could be prevented; is that clear?
A Right.
Q So the 1950s, were there studies of disease in, for
example, asbestos miners?
A Yes.
Q Tell us about that, please.
A Well, there were reports of cancers of the lung and pleura
among people who mined asbestos. There was a report
published in 1952, and two of the individuals named were
indicated had minimal asbestosis, but they had developed
pleural mesothelioma. So this was one of the earliest
reports of mesothelioma in people mining chrysotile asbestos
in Canada or were exposed to asbestos at the chrysotile
mines. One actually was the treasurer of one of the mining
companies.
Q So it was a --
A His exposure was from 29 years of office work at an office
at an asbestos mine.
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Q His job wasn't to go down and dig the rock out, his job
was to work in the office?
A Right.
Q And he still developed mesothelioma?
A Right.
Q What other developments in the 1950s occurred concerning
the knowledge of asbestos and cancer?
A There were a couple of epidemiology studies published in
this country and in England. One was published in the
American Journal of Public Health in 1954 by Breslow and his
coworkers. They interviewed a little over 500 men with lung
cancer, asked them about every job they had ever had, and
interviewed a control population of men of similar age
distribution who didn't have lung cancer to see how the two
groups compared, and found that there was a statistically
significant association with a collection of jobs that the
authors made in designing their study because of their
suspicions about asbestos.
And this group was called: Asbestos workers, steamfitters
and boilermakers. And so mostly this is people -- well,
there are different exposures to asbestos. The last two
groups were mostly from insulation products.
Q Alright.
A And they found association, even when they corrected for
smoking; they were now starting to separate out smoking and
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asbestos as causes of lung cancer. And this study at least
they said, even correcting for the smoking histories, we
still find a statistically-significant association between
these jobs and lung cancer risk.
Q Okay. So many of the earlier articles we discussed were
doctors writing up and having published in peer-reviewed
journals their experiences that their patients had cancer
after working with asbestos, is that fair?
A Right. Case reports.
Q Okay. And some of the doctors even were able to collect a
whole series of case reports and publish those, like Dr.
Gloyne that you mentioned and others?
A Right.
Q And now we're talking about a different type of scientific
study, an epidemiological study which uses this statistical
analysis, is that right?
A Right.
Q To make sure that these occurrences are real, is that
fair?
A Well, to the extent that you can, you can never really
prove cause and effect in a technical scientific sense, but
you can show a very strong association between the suspected
cause and the effect, which in practical terms amounts to
proving causation. What I mean -- just by way to illustrate
that -- you can prove that people who have exposure to like
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-- you might see a group -- if you're not seeing about the
smoking histories, you might infer that something is causing
lung cancer. And if you don't know that the one group smokes
a lot more than the other group, then you might miss the real
cause effect. So you might have a false relationship in
terms of associating something else with the lung cancer
risk.
Q So these studies were getting to be more precise in
looking and trying to determine what was the hazard that was
causing this increased number of cancers, correct?
A The British study found ten times the risk of lung cancer
in asbestos workers, factory workers, than they would have
expected from men in the general population on which they had
vital statistics. And there was no way you could figure that
the people who worked with asbestos smoked ten times as many
cigarettes as the men in the general population.
Q And when was that, sir?
A That was published in 1955 and received a lot of attention
in the medical literature.
Q So the British study, that was called an epidemiologic
study?
A Yes.
Q Did it control for smoking?
A No. In this case the men had died, and usually it's very
difficult to try and get any kind of smoking histories, let
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alone reliable smoking histories, from surviving relatives.
The Breslow study in 1954 they actually were interviewing the
men who were still alive who had lung cancer and they could
get reliable information.
Q And they had some smoking information there?
A Yes.
Q What did the Breslow study find?
A They found it was a statistically significant association
between lung cancer risk and the occupations of being an
asbestos worker, steamfitter or boilermaker.
Q They found an increased risk for occupations?
A Right.
Q And those occupations were not people who worked in a
factory but people who worked with asbestos products; is that
correct?
A Primarily, yes. The latter two groups clearly were people
who worked with asbestos products. And the group they called
asbestos workers I suppose could have included people who
worked at asbestos manufacturing plants or people who worked
with asbestos products, especially the insulators often
referred to themselves as asbestos workers.
Q But the latter group, you said they were boiler riveters?
A Boilermakers and steamfitters.
Q Did those people work with high temperature vessels that
had insulation on them that contained asbestos?
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A Yes, they did.
Q Did they work with asbestos that was placed on very hot
surfaces?
A Sure.
Q And even though the asbestos was placed on those very hot
surfaces, did those people develop cancer according to Dr.
Breslow's study?
A Yes. And in the course of applying and removing and
maintaining the insulation on these pipes and vessels, they
got the exposures to the dust and this was linked to their
lung cancer.
Q Okay. This is boilermakers. And what was the --
A And steamfitters.
Q Steamfitters. Thank you. Hot insulation?
A Yes.
Q Is that fair?
A Thermal insulation, insulation to keep, to reduce heat
losses and protect workers from getting burned and getting
contact with hot surfaces.
Q Going back to what Dr. Merewether and Mr. Price said in
1930 were the methods of preventing asbestos exposure being
discussed and promoted.
A Yes.
Q Was that a subject of some of these articles, why they
were reporting the disease, so that future cases could be
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prevented?
A Right. Sometimes the doctors would point out that we
don't have any way of treating people to make them well after
they develop asbestosis and cancers from asbestos. So the
only thing that's really going to work is prevention of the
exposures.
Q Now, let's focus on the type of cancer, mesothelioma. How
did the knowledge about that continue to develop in the 1950s
and into the 60s?
A There were a number of cases reported. I mentioned the
one in Canada. In 1955 in the epidemiology study in England
also included about one or two cases of mesothelioma. And
this cohort, they were counted as lung cancer, but they were
pleural mesothelioma if you looked carefully at the article
and records.
Then there was a large number of cases, 33 cases of
pleural mesothelioma reported from South Africa in 1960. And
32 of these individuals had a history of occupational or
environmental exposure to asbestos. This was reported in the
article. So the author is making the connection between the
asbestos exposure and the mesothelioma.
Most of these individuals worked in areas where
crocidolite, or blue asbestos, was mined. Not all of them.
Q Was that one of the amphibole-types of asbestos?
A Yes, it is.
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Q The jury has heard that we have amphiboles and we have
serpentines, and the chrysotile is the serpentine asbestos?
A Right.
Q That's where the miners had gotten mesothelioma, correct?
A In the 1952 report, right.
Q I'm pointing to that one. And now we've got records that
the amphibole family of asbestos is causing mesothelioma in
the 1960s; is that correct?
A That's right.
Q Tell us again what occupation these 33 people had?
A Well, some of them were people that worked at the asbestos
mines. But they also included a worker whose exposure came
from maintaining insulation at an explosives factory. They
did a lot of mining in South Africa, so also manufactured
explosives. There was another who got exposure to asbestos
from maintaining the insulation on steam locomotives. That
was asbestos insulation, but we don't know what type of
asbestos.
Q Any environmental exposures?
A Lots of them. Many of the cases were people whose only
exposure was from living around the mines. So where the
mine -- there was some blasting associated with the mining,
but there was also the mine wastes, or tailings as they were
called, were often used to surface unpaved roads so you had
cars and buses driving over these roads and this kind of
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generalized air pollution associated with the mining of
asbestos in this area.
And so this set off a lot of concern about mesothelioma,
and people started looking in places like shipyards and
finding a lot more cases throughout the shipyard trades. The
first of those publications was in 1962 in the British
Medical Journal.
Q And in the United States were there reports of
mesothelioma in 1960 among people who used asbestos
insulation?
A Yes. There were cases reported from the oil industry,
from Texas, where workers were exposed to asbestos from the
insulation. And it was tremendous amounts of insulation used
in pipe insulation and so forth at the oil refineries.
Q And the insulation was used in those parts of the oil
refineries where the temperature was very high, is that
correct?
A Yes. Some of the temperature demands were quite high in
the oil industry.
Q So would it be fair to call that high-temperature
insulation?
A Sure.
Q Then you had mesothelioma, and that was in Texas?
A Sure. And they referenced in that article in 1960
publications of mesothelioma in connection with asbestos from
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four countries. So it starts to indicate a broadened
awareness around the world about this risk.
Q All right. And does this summary kind of bring us up to
the conference that the ladies and gentlemen heard about in
1964 that Dr. Selikoff conducted?
A That and Selikoff's article published in the Journal of
American Medical Association earlier in 1964.
Q What did he publish before the meeting?
A He published an article on and epidemiological study. He
had obtained the cooperation of the insulation workers union
locals in New York and New Jersey and they gave them the
names of 632 men that were members of the union locals as of
the beginning of 1942.
What he did was a follow-up study to see how many of these
men had died, and analyzed their mortality pattern. He found
that 255 of the men had died by the end of 1962, and that he
would have expected, based on the vital statistics and age of
distribution of these men, that there would be six or seven
deaths from cancers of the lung and pleura in this cohort of
men. Instead, there were 45 deaths from cancer of the lung
and pleura. And there were also excess deaths from
peritoneal mesothelioma. None of those would have been
expected. That's a very rare disease. And excess deaths
from gastrointestinal cancer. Over 12 deaths from
asbestosis.
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So he documented really an appalling mortality in this
trade, in this study that he did, this mortality study that
was published in the most-widely available medical journal in
the United States. Then he organized this conference later
that year in 1964.
Q So his publication was 1964?
A Yes.
Q And you said he documented an appalling mortality in the
industry; is that correct?
A Right.
Q And were most of these workers a member of a trade that
applied insulation to high-temperature surfaces?
A Right. Basically that group of the construction trades
that dealt with thermal insulation.
Q Thermal means heat insulation?
A Right.
Q This insulation is designed to go on high-temperature
vessels?
A Right.
Q And that was exposure that Dr. Selikoff documented as
creating an appalling mortality?
A Right.
Q Now, was his publication widespread?
A Well, it was as -- it was published in the most widespread
medical journal. But also Selikoff did interviews with the
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media. And so he -- there was an article in the New York
Times in October of 1964 specifically about mesothelioma.
And then later that month the conference was held. But
Selikoff continued to do a lot of media interviews to try and
raise public awareness back in the 1960s when there was no
government regulation of any of this. There was no EPA.
There was no OSHA. No Consumer Product Safety Commission yet
created.
Q Even though those agencies, those government groups had
not been created for public-health purposes, was there a
responsibility for sellers of dangerous products to provide
means for workers to protect themselves?
MR. HALL: Objection, leading.
THE COURT: Sustained.
Q Doctor, would you please explain to the ladies and
gentlemen of the jury what responsibility you believe a
seller of asbestos products would have to users of its
products, based upon information available through the mid
1960s?
MR. HALL: Objection, calls for a legal conclusion.
THE COURT: That does sound like it's a legal
conclusion, counsel.
MR. HART: He's an expert and he's permitted to give
opinions that go to the ultimate issue in the case.
THE COURT: He's not permitted to give legal
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opinions.
Q Let's don't talk about legal ramifications. Let's talk
about, are you familiar with the public health obligations
that developed over time concerning these industrial hygiene
issues?
A Sure.
Q Speaking from that perspective -- we're not talking about
the law, His Honor will instruct the jury on that -- from a
public-health perspective explain the responsibilities from
public health officials.
A Well, workers, in order to protect themselves in the use
of hazardous products, they needed to know about the hazards
associated with the products. If a manufacturer knows
there's a hazardous ingredient that they use in their product
to which the worker is going to have exposure in the
foreseeable and ordinary use of the product, then the
manufacturer of the product should tell the workers about
this so that they can at least minimize their risk associated
with the use of the product. That's just common-sense basic,
moral and ethical obligations that we have in society.
And they're also fundamental elements of public health
protection that when manufacturers are putting products in
the channels of commerce that have non-obvious delayed lethal
dangers, like this, workers need to be told about this if
they're going to be able to protect themselves to any degree
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against these risks.
MR. HALL: Move to strike the nonresponsive part of
the answer.
THE COURT: The motion to strike will be denied.
MR. HART: Thank you, Your Honor.
Q Doctor, was information available concerning the hazards
of asbestos-containing board products as of the mid-1960s?
A Yes.
Q And was information available from a public-health
perspective where sellers of those products could have
provided methods for users to protect themselves?
A Yes.
Q What about high-temperature asbestos insulating cements?
Were hazards of those products known by the mid-60s?
A Sure.
Q Were methods available for the sellers of those products,
could have provided to users so that the users could have
protected themselves?
A Yes. Selikoff, when he started looking into this in the
'60s, said they can at least do things like mixing inside a
plastic bag rather than doing it in an open trough to reduce
the amount of dust workers get when you take insulating
cement and mix it with water before you're going to make it
up and apply it.
Q All right. And from a public-health perspective do
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employers have certain responsibilities?
A Sure.
Q Do sellers of toxic products also have responsibilities in
addition to employers, from a public-health perspective?
MR. HALL: Objection. Leading.
THE COURT: Overruled. You may answer.
A Yes, they do.
Q All right. And tell the jury why sellers of products,
from a public-health perspective, have responsibilities if
the employers already do.
A Because as an intentional redundancy in efforts to protect
public health, where you might have regulations where in the
1970s we finally had some OSHA regulations that mainly
applied to employers to protect workers from hazardous
materials, particularly asbestos. In the real world you
can't expect that every employer is going to know about all
the rules and regulations and fully comply with all the rules
and regulations about this.
And so as a backup, just in case the employer doesn't do
everything employers should do, you've got the requirement in
the OSHA regulations from 1972, for example, that sellers of
asbestos-containing products also warn people about the
hazards associated with the use of these products, and that
way, even if the employer is completely negligent, the worker
has the opportunity to know that this stuff is dangerous and
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maybe, either by taking it up with the employer or just being
careful about the use of the product, reduce his exposure to
dust.
Q Doctor, based upon your experience in public health, where
have you learned that employers get most of their information
about the hazards of the products used on the job site? Is
it important to get it from the sellers of the product?
A It's certainly important. It's not the sole source or
necessarily the most reliable source, but it's certainly an
important source of information to employers who might not
even know what's used in the product and really rely on the
sellers of the product to tell them that its got benzene or
asbestos in it, because that might not even be disclosed on
the label or in any other brochures that the manufacturers
provide to the users of the product.
Q Well, was it recommended from a public-health perspective
that sellers of products at least label the toxic ingredients
in them?
A Sure. People have been writing about that since the
1930s. If you're selling a drum that's 95 percent benzene
and you call it GX-42, that's not giving people much of a
chance to protect themselves from benzene poisoning. You
need to be a little bit more forthcoming about the hazardous
nature of the materials in your products.
Q Let's go to the '64 conference. Did you indicate earlier
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you knew Dr. Selikoff?
A Yes.
Q You worked with him on a professional basis?
A Yes.
Q And to deal with asbestos also?
A Sure. Like when Selikoff published about the joint
compounds, then we followed through in getting asbestos
banned in joint compounds. That's an example of working
together.
Q And you would speak with Dr. Selikoff, have conferences
with him about public-health issues and asbestos, is that
fair?
A Right. Starting in 1971 until he died in 1992.
Q Now, the jury has heard a little bit about the conference
in 1964 that Dr. Selikoff sponsored. Tell the jury the
purpose of the conference please, sir.
A The purpose was to gather people from around the world who
were knowledgeable about asbestos and disease to publish a
complete documentation, fairly relatively complete
documentation of what was known. And so there were a large
number of papers that were presented, people came from --
scientists from all over the world. There were also people
from asbestos companies and chemical companies and oil
companies and others, who were in attendance at this
conference. It was a three-day conference held at the
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Waldorf Astoria Hotel on Park Avenue in New York City.
Q I'm showing the cover of the publication to that
conference, is that correct?
A Yes.
Q And it lists the authors beneath the chairmen, Dr.
Selikoff and Dr. Churg?
A Yes.
Q The first author is C.G. Addingley. Who is he?
A He was associated with a company called British Belting
and Asbestos.
Q Was he a doctor?
A I don't think so. But I'm not sure. He might have been.
I think he -- he was involved in management in dealing with
asbestos as a health hazard in some way for that company, and
commented on the levels of exposure that could be dangerous.
Q So the participants of this conference involved both
doctors, corporate management, as well as scientists,
engineers and things; is that correct?
A Right, correct.
Q And Dr. Selikoff is an author here, and other people like
M.L. Newhouse. Who was that?
A Muriel Newhouse was the author of new information that was
made available at this conference showing that mesothelioma
was statistically significantly associated not only with
occupational exposure to asbestos, but household contact
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exposure. And in the absence of occupational exposure and
household contact, neighborhood exposure was also
statistically significantly associated.
This was based on an epidemiological study of 76
individuals that had died with mesothelioma, interviews with
their survivors, and interviews with 76 patients who were
still living who were of the same age and gender as the 76
mesothelioma individuals that had died, to have a comparison
of their histories of asbestos exposure through interviews.
Q And this person, the second-to-the-last row, J.C. Wagner.
Who is that person?
A Wagner had published the report of the 33 cases of pleural
mesothelioma from South Africa. And at this conference he
presented a case of a woman that had died from mesothelioma
at the age of 55. And her only exposure was playing as a
child on the asbestos waste dumps on the way home from school
when she lived in the asbestos mining district before she was
-- at the age of 5 she moved from that, then 50 years later
mesothelioma.
THE COURT: Ladies and gentlemen we'll take our
morning recess at this time. We'll be in recess for
approximately 15 minutes.
(The proceedings recessed.)
Q Dr. Castleman, we were talking about the Selikoff
conference and you explained the purpose of it and some of
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the people who attended there. Are you familiar with
discussions that were held in 1964 at the Selikoff conference
concerning the -- whether or not there was a safe level of
exposure to asbestos?
A Yes. There was at least one paper and some definite
discussions as well about that.
Q And what was the generally -- based upon the discussions
in the paper and -- I mean, discussions in the book and
paper, what was the generally recognized views toward whether
there's a safe level of exposure to asbestos?
A They were very skeptical. Management people from
Addingley, from British Belting and Asbestos, and Wells, who
is not named on this cover, but who was a company doctor for
Uniroyal -- it was called, I think, United Rubber Company at
the time -- they had an asbestos textile plant in Georgia.
And both these individuals commented that the guideline of
5 million particles per cubic foot of dust which had
initially been recommended in the 1930s for asbestos control
was not scientifically adequate and that only zero, really
nil exposure, only that was really safe.
Q And what disease were they looking at when they were
saying zero was the only safe level of exposure?
A In the case of Wells, he was talking about asbestosis.
But with the dominant concern -- he was actually talking
about how, you know, they found lower and lower levels of
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exposure associated with this through their actual experience
at their plant. But in general the conference focused a lot
on lung cancer mesothelioma as asbestos diseases for which
nobody was saying there was a safe level of exposure.
Q Now, right here in the center, this gentleman here, W.C.
Hueper. Do you see that?
A Yes.
Q Who was Dr. Hueper?
A Dr. Hueper was the chief of the environmental cancer
section of the National Cancer Institute of the United
States. He worked for the federal government. He had
published hundreds of papers on occupational and
environmental cancer and had named asbestos as a cause of
occupational cancer since the early '40s in dozens of
articles.
Q All right. And had he been the author of some of those
articles published in the Journal of the American Medical
Association you described earlier?
A Yes.
Q All right. And you say he's the father of occupational
cancer?
A No. I would say he was the most published author --
Q Author. Okay.
A -- in the world. Medical and scientific literature in the
'40s, '50s and '60s on occupational and environmental cancer.
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He published a great deal. And these were largely review
articles. So they would review the state of knowledge
through time. And I'm saying that he mentioned asbestos as a
cause of cancer in a great many articles starting in 1943,
'42/'43.
Q Okay. He was an author not a father. I misheard you.
So, when he participated in 1964 in this conference,
did he turn his occupational cancer attention to asbestos
specifically?
A He did.
Q And what did he publish in this book and what did he
discuss with the participants concerning cancer from
asbestos?
A Oh, he indicated through presentations and text that
asbestos in a very wide-range of product uses, including
asbestos cement and insulation products, were hazardous to
people. That workers using these products were in danger of
developing cancer from asbestos.
Q Did he do a specific presentation where he focused on
potential sources of exposure to asbestos?
A Right. I mean, these were among the written published
presentations from this conference in these proceedings in
the volume in front of you.
Q Among the sources he outlined, number one, did he discuss
asbestos insulating cements?
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A Yes.
Q For high-temperature purposes?
A Well, I don't think he got into too much in the details as
to the temperature demands. But he talked about insulating
materials containing asbestos.
Q Did he discuss asbestos mill board or asbestos boards as
another source of asbestos exposure to workers?
A Yes, he did.
Q And he discussed both of those specifically with
potential, being a potential source for cancer?
A Sure. That was his focus.
Q Now, so this is all medical literature you've been talking
about up through -- since the 1930s up to the present. Were
there other sources of information for companies to learn
about the hazards of asbestos through the 1940s, '50s and
'60s?
A Yes. There were engineering publications in the 1930s
talking about dust measurement, industrial ventilation
control systems, how to design them, things like that,
published in journals with names like Mechanical Engineering,
and their British -- that was published in the U.S. and
various British engineering journals in the 1930s as well.
Then there were safety publications. A journal called
Safety Engineering. And publications, many publications of
the National Safety Council based in Chicago.
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Q All right. So I published interrogatories, Exhibit 505,
which describe that the parent company for Ferro Engineering
in the past, Oglebay Norton, was a member of the National
Safety Council. You were in the room when I did that,
correct?
A Yes.
Q What was that organization and explain what a company had
access to concerning asbestos through its membership in that
organization.
MR. HALL: Your Honor, I object on relevancy grounds
to the extent that this is offered as against Lone Star,
Pioneer Sand and Gravel.
MR. HART: This would be on Ferro, Your Honor.
THE COURT: All right. Admitted for that. Go ahead.
A The National Safety Council was set up in 1912 by big
business mainly to limit industrial injuries. So they were
pushing things like safety glasses and safety shoes, and also
putting the idea of putting guards, metal guards around fast
moving belts so workers didn't get pulled in by their
sleeves, those kind of practical cost-effective injury
prevention approaches.
And then in the 1920s the National Safety Council started
publishing and investigating issues having to do with
tetraethyl lead and benzene. And they started getting into
the field of occupational diseases and protection of workers
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from those.
And by the end of the 1920s with a great deal of attention
to hazards of industrial dust, we start seeing publications
from the National Safety Council that talk about asbestosis
and asbestos dust as a hazard and dust control. They had the
annual National Safety Congresses, which were the annual
meetings, which full volumes of which were published and
distributed to members. And they had a monthly magazine
called the National Safety News. And then they had
specialty publications with names like Accident Prevention
Manual and so on.
So there were a wide number of publications, many of which
you can find in public libraries -- they weren't just
available to members of the National Safety Council --
providing information on dust measurement, air sampling,
medical evaluation of workers, worker's compensation laws
relating to dust diseases, those kinds of things that would
be of interest to different types of individuals and
companies involving and managing protection of workers from
occupational diseases.
Q Now, you talked about the articles that were in the
medical literature discussing asbestos and cancer. Did the
National Safety Council reprint or make reference to those
articles in the materials it distributed to its membership?
A They did that or they just kind of republished the same
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information but for a broader non -- not strictly medical
type of audience. So they were getting the same information
out. They weren't publishing stuff that was not in medical
and scientific journals, but they were making it available to
a broader audience through their publications.
Q So Ferro Engineering's parent, the Oglebay Norton Company,
was a member of the National Safety Council, it would have
access to the development knowledge of asbestos as a cause of
cancer through the 1960s through the National Safety Council
as one source; is that fair?
A Yes.
Q Now, let me ask you to look at --
MR. HART: Madame clerk, may I have the exhibits
beginning with the 500 series, the plaintiff's?
Your Honor, this next series of questions will apply to
ON Marine or Ferro Engineering only.
THE COURT: All right. Thank you.
Q If you could turn to Exhibit 518, please.
THE COURT: What that means, ladies and gentlemen, is
that this evidence is limited in the application of what you
consider it for and it applies only to the defendant,
ON Marine.
Q Is that the one, The Chat With the Doctor?
A Yes.
Q And the jury -- I published this to the jury earlier, we
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don't need to read the whole thing. But just generally, tell
us how significant, from a public-health perspective, to a
company like Ferro Engineering is the information in this
article in order to enable them to protect users of their
products.
A Well, it enables management of the company, who certainly
include people that don't read the Journal of the American
Medical Association and other medical publications, to
understand in plain English that asbestos is a lethal danger,
asbestos dust is a danger, and that protective measures are
needed in order to keep people from breathing the dust and
getting the disease it causes.
Q Is this the information that is the type of information
important from a public-health perspective of a company?
A It is. In lots of ways -- it's newspaper articles that
inform corporate management in ways that, you know, they
might not have otherwise obtained information in some cases.
Q And it's written in simplified form compared to medical
journals, is that fair?
A That's true. It's not full of technical medical jargon
that you might find in a pathology journal.
Q I've heard said you can't believe everything you read in
the newspaper. Is that generally agreeable?
A It's usually good to be cautious. That goes double with
the Internet.
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Q And the Internet, correct.
But if a company got this article, and they did, in
fact, get it according to their production to us, would that
give them any reason to conduct research or investigate
concerning this subject matter?
A Well, it would certainly logically prompt people in
industrial management to, first of all, if they're
manufacturing a product using asbestos as a raw material in
the manufacture of the product, their workers are clearly
going to be in danger if they don't take steps to limit their
workers' exposure in the manufacturing plant to this dust.
And secondarily, it's not exactly rocket science to infer
that, from the foreseeable conditions of use, a chemically
stable product like asbestos mineral dust contained in the
finished product, if the product is going to be subject to
creating dust in the course of its use, that may also be a
danger to the users of the product who are, you know, capable
of being at least partially protected if they're warned about
the nature of the danger and means they can take to reduce
the dust exposure.
Q Doctor, are products that are sold that contain asbestos
in the late 1960s early 1970s, those products are sold
without warnings to users, would those products be
unreasonably dangerous from a public-health perspective?
MR. HALL: Objection.
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MR. ANDRE: Objection.
MR. HALL: Calls for a conclusion of law.
THE COURT: Well, I think it's a question of fact as
well. I'll permit the witness to answer the question.
MR. HART: Thank you, Your Honor.
A Yes.
Q And why do you say that?
A Well, if the product creates asbestos dust in the course
of its use, contains asbestos, then workers have no way of
knowing it's dangerous unless they're told about those
things. Lots of time there's no -- it's not at all obvious
that the product contains asbestos. Even if the worker for
some reason back in the 1960s knew asbestos was dangerous and
was alarmed or looking out for it, they might not have known
that individual products that don't have any marking to that
effect contained asbestos.
But, for the most part, the workers just didn't have any
idea asbestos was dangerous back in the 60s and 70s. And
they needed to be told that, too. And they ought to have
been told the extent of the danger, not some vague language
about how breathing it might be harmful to your health.
MR. HALL: I'll move to strike the nonresponsive part
of the answer, particularly the very last part of it.
THE COURT: Just a moment.
I think I am going to strike, ladies and gentlemen, the
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last part of his answer where the witness said: For the most
part workers didn't have an idea asbestos was dangerous, etc,
the end of the answer I think is not responsive to the
question and would call for this witness to tell us what
workers may or may not have known. So I'm going to strike
that. You'll disregard that portion of the answer.
Q Let me discuss that subject with you, doctor, foundation
for it. When you completed your master's thesis in 1972 and
began working, you said one of the subjects you addressed in
your field was asbestos hazards in the workplace; is that
correct?
A Yes.
Q Did you actually go to workplaces and speak with workers
who were working with asbestos product?
A Yes.
Q And what type of products were they?
A They were filters used in breweries and distilleries.
They were brake linings and brake -- they were doing brake
repair. So they were blowing accumulated dust out of brake
assemblies. And none of these workers seemed to have any
idea this stuff was dangerous.
Q That's what I was going to ask you, in your personal
experience --
MR. HALL: Excuse me. I move to strike that
nonresponsive part of that answer also.
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THE COURT: You've got to tell me the nonresponsive
part.
MR. HALL: The very last part, last sentence.
THE COURT: I'm going to strike the last part of the
answer where he says, "And none of these workers have any
idea this stuff was dangerous."
Q Doctor, let me ask you your personal experience based upon
interviewing workers. Was there an awareness of the hazards
of asbestos?
A For the most part, no. It would be an unusual worker back
in the early' 70s that knew asbestos was dangerous.
Q And were there discussions in the public-health literature
concerning the awareness of workers concerning hazards such
as asbestos?
A Well, there was. You know, occasionally articles would
call that to people's attention. My own article, when I
wrote about warning brake mechanics in the early '70s in an
article published in '75, I said the least the manufacturers
could do is put a warning label on these products. Because
when we started putting out these notices, there were no
labels of any kind on any of these brake parts.
Q Now, another article that was found in the ON Marine, I
guess it's the Ferro Engineering archives, from the Sunday
Times of London: Asbestos Recognized as Cancer Risk by Dr.
Alford Byrne. Do you see that? I think it's Exhibit 520.
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And this particular copy is a little blurry; I'm not going to
ask you to read it. But just with the headline, would that
put a company on notice if this was in their files that some
potential research was necessary?
A Sure. And some of the text is especially alarming.
Q Particularly what?
A The part at the bottom of the first paragraph going --
bottom of the first column going on to the second column
where it says, "Exposure for only two or three months may
cause the cancer." So they're saying two or three months'
exposure can be enough to kill you.
Q And that was known by the author of this article who
published it, and in the Ferro Engineering archives in 1966?
A Evidently, yes.
Q Let's talk about company response, corporate response.
You've investigated the actions of companies in response to
this developing knowledge, have you not?
A Yes.
Q Much of your book describes what companies did and did not
do in response to the knowledge about asbestos, is that
correct?
A Right.
Q Did some companies perform research?
A Yes.
Q Did some companies test?
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A They tested the products to see the exposures involved.
They did research looking for substitute materials to replace
the asbestos. Yes, those sorts of things.
Q Did companies -- let me ask you this way. Were there
laboratories available that companies could go to and ask
them to test their products?
A Sure.
Q Was that, in fact, done by companies that made asbestos
products?
A Yes.
Q Give us some examples, please.
A The manufacturers of the joint compounds had a private
laboratory test several products and provide them with the
exposure data on the application of those drywall patching
compounds.
Q So they actually had a test to see how the product was
used to address asbestos exposure; is that correct?
A Well, I guess they went ahead and used the product in the
way they always did and at some construction site, but they
had a qualified lab come by with air sampling devices and
either put them on the lapels of the workers or put them in
the room where the work was going on and record the levels of
exposure that way.
Q And by so doing they had some information about how much
asbestos was liberated from the use of that product; is that
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correct?
A How high of an exposure to the harmful agent the workers
were receiving.
Q And in the early to mid-1970s, were there numerous
laboratories available to assist companies who wanted to
investigate that?
A Yes.
Q Let's go back farther in time. Were there laboratories
available that could do, let's say, animal research to
determine whether asbestos was hazardous and could cause
cancer?
A Yes.
Q Did some companies engage in that type of research?
A Yes.
Q What did they learn?
A Well, in the case of asbestos they learned that asbestos
could cause cancer by inhalation in experimental animals. So
this is one way -- in the case of a rat or mouse only lives
two or three years, so in a fairly short time compared to
studies of people, you can find out, especially with a new
product, within a few years of an animal, using an animal
study, you might be able to determine if this stuff is
something you need to worry about from the standpoint of
causing cancer in people who are going to be exposed to the
same respiratory exposure.
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Q Okay. And in addition to doing tests with asbestos, raw
asbestos, were there laboratories available where you could
take a product that you just developed and were going to
sell, and before you put it on the open market, have it
tested by the laboratory to see if the product caused harm to
the laboratory animals?
A Sure. Dust chambers that were set up by private labs that
companies could hire to do these kinds of tests on rats,
mice, guinea pigs.
Q And did companies, in fact, test their products before
they put them on the open market in such laboratories?
A Some companies did.
Q All right. And when did the companies -- some of the
companies do testing using raw asbestos in the laboratory to
get information, what time period did that take place?
A The earliest such tests were started in the 1920s and the
first research findings were published in 1931.
Q What about laboratory animal research on raw asbestos
whether it's capable of causing cancer. When did that take
place, what general time period?
A Well, there were -- experimental data were developed in
the 1940s on that. But they weren't published.
Q Okay. But my point is that there were laboratories where
a company could go do that type of research in the 1940s,
correct?
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A Correct.
Q Research cancer?
A Yes.
Q When were there laboratories available for companies to
take the products that they developed, before they put them
on the market, and have them tested to see whether they
caused harm to workers?
A At the same time, the 1940s and probably before that, but
certainly the 1940s.
Q Did some companies do that in the 1940s?
A Owens Illinois did it with an insulation product they were
introducing at that time containing asbestos.
Q And was the information that they obtained, information
directed at protecting the health and safety of users of
their product?
A That was one of their concerns expressed from the
beginning when they commissioned research in 1943.
Q Now, you mentioned earlier that users of materials have to
be told, had to be warned, given a sane appreciation of the
risk of those concepts?
A Right.
Q Did some manufacturers actually provide at least some
information to users of the products?
A This started it seems in 1964, after Selikoff's article
was published in the Journal of the American Medical
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Association, about the high mortality of the insulation
workers. The next month, I think Johns Manville, according
to several types of different documents, Johns Manville
Corporation started to place the first generation of warning
labels on their insulation, their thermal insulation
products. But the warning was very vague as to the health
effect, "May be harmful to your health if you breathe
excessive quantities over long periods of time." They don't
say whether it's a cough or cancer they're worried about you
getting.
Q Some companies at least began putting labels on their
products in the early to mid-60s, is that correct?
A Yes.
Q So it was feasible to do so?
A Oh, sure.
Q Now, did some sellers -- you heard that in answer to an
interrogatory that one of the suppliers of asbestos to Ferro
Engineering for their Ferroboard was a company called
Canadian Johns Manville. Are you familiar with that company?
A Yes.
Q Is that one of the companies you investigated in your
book?
A Yes.
Q Did that company place warning labels on its asbestos
fiber that it was selling to companies like Ferro
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Engineering, let's say before 1970?
A They did. In 1969 they started to place these warnings.
And before they did that, they notified their customers that
they were intending to place the first generation, if you
want to call it, of health warnings on sacks of asbestos
shipped from their Canadian mines.
Q That was information available to all of the purchasers of
asbestos fiber from Canadian Johns Manville Corporation?
A Yes.
Q Doctor, from a public-health perspective, should users of
-- or persons exposed to the residue of Ferroboard hot top
product containing amosite asbestos in 1973 and thereafter
have been advised by manufacturers of the product of the
hazards of the asbestos?
MR. ANDRE: Objection. It's a legal question, Your
Honor.
THE COURT: Just a moment. I'll permit the witness
to answer the question.
A Yes.
Q Was it -- were there methods and means available to do so?
A Sure.
Q From a public-health perspective, doctor, as of 1973
should a seller of high-temperature asbestos cement have
advised users of that product of the potential dangers from
exposure to asbestos, first of all from mixing that product?
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A Certainly.
Q Were there methods and means available to do so?
A Yes.
Q From a public-health perspective, would it be negligent
not to do so?
MR. HALL: Objection, Your Honor, calls for a legal
conclusion.
THE COURT: Sustained. Now we're getting into the
legal field.
MR. HART: Doctor, thank you very much for your time.
That's all the questions I have, Your Honor.
CROSS EXAMINATION
BY MR. HALL:
Q Good morning, Dr. Castleman.
A Good morning.
Q I want to start with a couple of things that I think that
you and I can agree on. And I want to start with your book.
And I, like Mr. Hart, I have some old books that have seen
better days --
MR. HALL: Your Honor, may I approach the witness?
THE COURT: Yes. You can give it to the clerk, if
you'd like.
A Looks like the first edition.
Q You anticipated my question. That was the first edition
of your book?
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A Yes.
Q And what you were shown earlier, that was the fifth
edition of your book?
A Yes.
Q And the first edition you had specific sections or
chapters on a number of different companies, correct?
A Right.
Q And in that first edition it was approximately 15
companies; is that correct?
A I think so. I'm not going to bother counting them, but
that sounds about right.
Q And in your last edition, the fifth edition, there are
chapters or sections on approximately 30 companies; is that
correct?
A That sounds about right.
Q And you have published new editions as you have gotten
more information; would that be a fair statement?
A Sure.
Q And that would be as you acquired, over the course of your
30-plus years of consulting, you've learned more information
about what companies knew and you've added companies to the
list. Would that be a fair statement?
A Yes.
Q Now, in your first edition are any of the companies that
you wrote about, Pioneer Sand and Gravel?
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A No.
Q Are any of the companies that you wrote about in the first
edition, Lone Star Industries?
A No.
Q In your fifth edition are any of the sections that you
wrote about Pioneer Sand and Gravel?
A No.
Q And are any of the companies that you wrote about Lone
Star Industries?
A No.
Q And would you agree with me that at least you have no
opinions as to what the actual knowledge of Pioneer Sand and
Gravel was with respect to the dangers of asbestos?
A I haven't seen any documents indicating the actual
knowledge of the company. So I don't have an opinion on what
they actually knew, absent such evidence.
Q And would your answer be the same for Lone Star
Industries?
A Yes.
Q I promised Mr. Hart I'd be very careful with this. This
is what you were shown. This is the list of attendees or
authors?
THE COURT: You've got it on sideways, counsel.
Q Have you been provided any evidence or know of any
evidence that any of these authors had any relationship to
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Pioneer Sand and Gravel?
A No, sir.
Q Do you have any evidence or been provided any evidence
that any of these authors had a relationship to Lone Star
Industries?
A No.
Q Do you have any evidence that any individual connected
with Pioneer Sand and Gravel was present at the conference
that you've talked about?
A No.
Q Do you have any evidence that any member, any individual
associated with Lone Star Industries was present at the
council?
A No. I've never seen the list of everybody that was there,
by the way. This is -- this and some corporate documents
provide the totality of what I know about who was there.
Q This is another document that Mr. Hart went over with you
and I promised him that I wouldn't write on it. I want to
direct your attention to 1942. Do you see that?
A Yes.
Q And you've talked also about Dr. Merewether?
A Right.
Q And in 1942 did Dr. Merewether visit the United States?
A Yes.
Q And where did he visit in that year?
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A He visited shipyards, at least one shipyard on the East
Coast. And he visited, I think, the laboratory where some of
these experimental animal studies were going on in 1942, '43.
Q Do you know who owned the shipyard that he visited on the
east coast?
A Bethlehem Steel.
Q And it's your opinion, isn't it, that at least as of 1942
Bethlehem Steel was aware of the dangers of asbestos?
A I think that's fair to say, yes.
Q With respect to a company's knowledge, companies can have
operations in many different locations, correct?
A Sure.
Q And if information in one location is developed, you would
agree, wouldn't you, that that's information that's generally
available within that company; would that be a fair
statement?
A It's a little bit vague. But generally speaking,
companies are designed to be able to process information in
that way where if they learn something through some of their
activities, and that's significant to their business, that
information will be shared with other subsidiaries and
operations of the company. It doesn't always happen but they
are set up with that in mind.
Q Now, one of the sources of information that's available to
a company, I think you indicated, would be worker's
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compensation claims for an asbestos-related disease?
A Right.
Q Do you have any evidence or are aware of any evidence that
there was ever an asbestos-related worker's compensation
claim filed with respect to Pioneer Sand and Gravel?
A I don't have any information about that.
Q Would your answer be the same for Lone Star Industries?
A Yes.
Q Now, you understand that my client is not a manufacturer
of asbestos-containing products?
A Yes.
Q Do you understand that?
A I do.
Q And the claim is that my client was a supplier or seller
of asbestos-containing products as a distributor?
A Right.
Q Now, you make a distinction regarding state-of-the-art
knowledge between a manufacturer and supplier, don't you?
A I do.
Q And you would generally hold a manufacturer to a higher
standard than a supplier; is that correct?
A That's right.
Q And what distinguishes whether the -- with respect to
whether a company would be held to a higher standard depends
on the information available to the company, would you agree
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with that?
A Among other things. The manufacturer has employees, and
if they're using asbestos in their activities, it's been well
known since the 1930s in industrial, medical, and insurance
circles that workers in a factory where asbestos is being
used, if it's not properly controlled, are going to be in
mortal danger. A supplier doesn't have that kind of business
activity that a manufacturer has, and that's why I would hold
a manufacturer to a higher standard of knowing and doing
something about hazards associated with a product.
Q And with respect to what a company knows about asbestos,
there can be a number of sources of information that would be
available to a company such as Pioneer Sand and Gravel?
A Sure.
Q Is that a fair statement?
A Sure.
Q Might be the public domain that you've spent some time
talking about here this morning, correct?
A Might be.
Q It would also include information coming from the
manufacturer of the product that they were selling, would you
agree?
A Right.
Q I want to make sure I heard your testimony earlier this
morning correctly. At one point Mr. Hart asked you about
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responsibilities of employers, responsibilities of sellers,
and I wrote down the term with respect to warning. It is
addressed, the contention of redundancy. Did I write that
down correctly?
A Not contention. But there's an intentional redundancy in
public health efforts where there's an overlap and you kind
of backstop the regulations on the employer with regulatory
requirements on the seller of the product as to warning
labeling.
Q And so the idea, as I understand it, is that the -- and I
think you said that not every employer is going to know every
regulation?
A Right.
Q Okay. And in this case Mr. Turner's employer was
Bethlehem Steel; is that correct?
A Yes.
Q Now, information that an employer, what we said earlier
about getting information from manufacturers for purposes of
distributors, that's also where the users of the product
would get information; would you agree?
A Well, it's certainly one place where the users of the
products can get information from a manufacturer.
Q It might not be the only place, but they certainly would
expect to get information from a manufacturer if a company
like Bethlehem Steel was going to use the product. That
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would be a source of information, would you agree?
A It's a little hard for me to say what workers would expect
of either employers or the manufacturers of products. I
don't feel comfortable trying to answer questions like that.
They would hope that somebody is doing what they should do to
protect them and warn them. But what they would expect is
another question.
Q And with respect to the product, the refractory cement
that's at issue here, you understand that the claim relates
to a product called Insulag?
A Yes.
Q And Insulag was manufactured by the Quigley Company,
correct?
A Yes.
Q And in approximately 1968 the Quigley Company was
purchased by Pfizer; is that correct?
A I don't recall all the details of the corporate history of
that company. I'm not sure if I have ever been told about
all the details.
Q Are you aware that at some point in time Pfizer became the
owner, or Quigley, became a subsidiary of the Pfizer Company?
A Why don't we say I accept your representation that that
occurred whenever you say it occurred for the purpose of the
next question.
Q Fair enough. And so -- and with respect to Quigley and
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Bethlehem Steel, information that Quigley was sharing with
Bethlehem Steel, that would be an important source of
information with respect to Insulag, wouldn't it?
A It might be.
Q Okay. I'd like you to --
MR. HALL: If we can get Exhibit 2082.
A Yes. I have it here in front of me on the Quigley
letterhead.
Q This is an April 28, 1972 letter from Mr. R.W. Young of
the purchasing department, or it's a letter to Mr. R.W. Young
of the purchasing department of Bethlehem Steel; is that
correct?
A Yes, it is.
Q And this is a document that addresses on the second page a
substitute for Insulag. Do you see that?
A Are you talking about the big paragraph?
Q Yes.
A Let me take a quick look at this. Yes, I see the
paragraph. What do you want to know about this?
MR. HALL: Your Honor, we'd move admission of 2082 as
an ancient document.
THE COURT: I think it was an admitted exhibit
already on the list.
THE CLERK: That's correct, Your Honor.
THE COURT: You want me to have to rule on it again?
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MR. HALL: No, Your Honor, I'm not asking you to rule
on it again. I like the first ruling.
THE COURT: Well, it's in your list, the pretrial
exhibit list as admitted.
Q So let me show you this letter. And here in April of 1972
the Quigley Company is writing directly to Mr. Young at the
purchasing department of Bethlehem Steel. Do you see that?
A Yes.
Q And you see. "We have analyzed our sales figures and have
found we have supplied 15 different products to you over the
past five years." Do you see that?
A Yes.
Q And one of those products is Insulag, correct?
A No. 8, yes.
Q And on the second page this is Mr. Marino, the chief
engineer for Quigley, is discussing the development of
non-asbestos products. Do you see that?
A Yes.
Q And what they are -- he also mentions that they are
working on a direct substitute for Insulag and are hopeful it
will be available soon; is that correct?
A Right.
Q Okay. Now, and Quigley also was communicating directly
with respect to Insulag and the development of an
asbestos-free product with Bethlehem Steel's research labs.
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Are you aware of that?
A I don't think I've seen that correspondence. Is that here
somewhere?
Q This is Exhibit 2137. And I'm going to defer for a moment
if that's been admitted. No. Okay.
A I have it in front of me if you want to ask about it.
Q Yes, I will ask you a few questions.
And this is a letter dated February 9, 1973, from
Mr. Cotton who's the manager of the sales services?
A For Quigley, yes.
Q And he's writing directly to Mr. Baab, who is Homer
Research Labs, Bethlehem Steel Corporation, Bethlehem,
Pennsylvania?
A Yes.
Q In there he has a reference to the availability or --
THE COURT: My list doesn't show this as being
admitted.
MR. HALL: At this point I would move to admit 2137
as an ancient document.
THE COURT: Any objection, counsel?
MR. HART: No objection, Your Honor.
THE COURT: It will be admitted.
(Exhibit No. 2137 was admitted into evidence.)
Q And in this letter Mr. Cotton is writing directly to
Bethlehem Steel in which they're following up with their
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discussion with respect to Insulag AF. Do you see that?
A Yes.
Q And the last sentence says, "Overall we have an excellent
product in Insulag AF." Do you see that?
A Yes.
Q That is February 9, 1973; correct?
A That's the date of this letter, yes.
Q You discussed in your direct testimony your work on the
ban of asbestos in joint compounds. Do you recall that
testimony?
A Yes.
Q And that ban went into effect in 1976?
A 1977. Actually, it went into effect -- the rule was
published in December of '77, and I think they immediately
banned manufacture and gave the industry six more months to
stop selling whatever stocks they had in the channels of
commerce in 1978.
Q And I think if I, again if my notes are correct, you
indicated that at that time when you were working on that ban
there were already asbestos-free products in the marketplace,
right?
A Right.
Q Would you agree with me Insulag AF would have been one of
those products?
A No. It's a different class of products we're talking
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about. It's the same idea, but a different category of
asbestos-containing products in which the manufacturers were
moving to replace the asbestos once it started to get
regulated by OSHA and so on.
Q Let's talk about OSHA for a little bit. Now, you have
described OSHA in the past as, the period before OSHA, was
the stone age of industrial medicine; is that right?
A I have used that expression. There was really no
protection of workers in this country until the 1970s, at
least nothing through government regulation, not enforced.
Q So OSHA became effective in 1972, correct?
A Well, OSHA began to function in April of 1971. Of course
it was a brand new government agency. But it issued an
emergency temporary standard for asbestos in December of 1971
and so-called permanent standard in June of 1972. So that's
the timeframe.
Q And the purpose of OSHA was worker health protection, at
least that was one of the purposes?
A Worker health and safety, sure.
Q Sure. And the regulations that were adopted by OSHA were
addressed to companies such as Mr. Turner's employer,
correct?
A Yes.
Q Now, I'd like you to turn to Exhibit 39. I think this has
already been admitted. I'll confirm that before I put
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anything up.
A What you're putting up is from the federal register where
OSHA published the so-called permanent standard in 1972, in
June.
Q And these permanent standards are something you're quite
familiar with, would that be a fair statement?
A Yes.
Q And one of the standards that they adopted related to the
mixing of asbestos cement, correct?
A Yes.
Q And there was a procedure in place for how that was to be
addressed, correct?
A Yes.
Q And that regulation would have been applicable to
Bethlehem Steel, correct?
A I think so, sure.
Q Now, Dr. Castleman, I think we've established that for a
company like my client, Pioneer Sand and Gravel, one of the
sources of information that it gets is information from the
manufacturer of the product, correct?
A Right.
Q And in this case, for Insulag, the information that
Quigley would provide to Pioneer Sand and Gravel could
include marketing materials?
A Sure.
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Q Okay. Really anything that Quigley puts out there in the
public, that's information that a company like Pioneer Sand
and Gravel would accept and would have available to it in
terms of making decisions with respect to what it knew or
didn't know. Would that be a fair statement?
A Yes.
Q Okay. I'd like you to turn to Exhibit 274. This is an
exhibit that's been -- I'm sorry, 2074.
THE CLERK: This is not an admitted.
THE COURT: This is not an admitted document.
MR. HALL: 2074?
MR. AMEELE: I show it as admitted.
THE CLERK: I'll double check. I stand corrected,
Your Honor. Admitted on December 4, 2013.
Q Do you have it in front of you?
A No. Okay. This is like the document from Quigley,
answers to interrogatories or something like that.
Q Right. Well, the good news is I'm not going to ask you
questions about every page of the document. So if you could
turn to page 3.
A Yes.
Q And this shows that the last date for manufacture of
Insulag was March 31, 1974; correct?
A That's what it says.
Q And now I'd like you to turn to a document that has the
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Bates stamp 000005.
A In this same document?
Q Yes.
A Okay. I have that.
Q And I want to make sure you're on the same page. Is it
the document I have in front of us?
A Yes.
Q And you see down on the bottom where there's a 4/67?
A Yes.
Q Is the word asbestos anywhere on this document?
A I don't see it.
Q Do you see the language, though, that I have highlighted?
A Yes.
Q "Insulag is non-injurious as contains no mineral wool or
fine slag particles which are irritants to the body." Do you
see that?
A Yes, I do.
Q And this is part of the information that a company like
Pioneer Sand and Gravel would have received from the Quigley
Company, correct?
A Well, they may have, yes. I don't know if they did or
not.
MR. HALL: Thank you, Dr. Castleman, I have nothing
further.
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CROSS EXAMINATION
BY MR. ANDRE:
Q Good morning, Dr. Castleman.
A Good morning.
Q My name is Bob Andre, I represent ON Marine, and a former
division of ON Marine which is called Ferroboard Engineering.
Now, you were hired by the Bergman firm in this case to
testify for the first time, I believe, against Ferro
Engineering; is that correct?
A I've never been in a trial where Ferro was a defendant
before, that's right.
Q I looked at your book down here and I followed all your
books, all the chapters over the years. And there's no
mention in the index or anything of you doing a research
study on Ferro Engineering.
A No.
Q And I also looked at the steel industry, and if you
recorded in the steel industry at least on this most recent
volume, and I don't see any steel industry information?
A Very little about the steel industry. I mean, I mention
the visit to Bethlehem Steel by Merewether in 1972. But it's
not a detailed attempt -- there's only so much you can put in
a 900 page book. And I didn't get around to dealing with the
steel industry in any great detail.
Q I asked you at your deposition four months ago whether you
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were in a steel mill plant. You said you were in a steel
mill plant, I believe you were an inspector at that time,
were you?
A I was a public health official, an air pollution control
official, and we had a very large Bethlehem Steel mill in
Baltimore, which was in Baltimore County. And I visited that
on a number of occasions.
Q And did you give any citations at that mill?
A No. But I was a county air pollution official. The State
of Maryland retained authority to deal with that installation
as far as regulation. And neither we nor the state air
pollution authorities were OSHA officials, who might have
more reasonably had grounds for citing Bethlehem for
violating worker health and safety regulations.
Q Doctor, you did no report in this case on Ferro
Engineering in preparation for your testimony?
A I don't think I did, no.
Q And I don't think -- you didn't review any of the files in
this case except what Mr. Hart showed to the jury, which was
Ferro's answers to interrogatories in this case?
A I saw that and I think I saw some of these documents we've
talked about this morning.
Q You were here in the courtroom when the jury saw the
answers to interrogatories; is that right?
A Right.
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Q So other than that, we're not dealing with any background
information that you have on Ferro Engineering?
A That's right.
Q All right. Now, I'm not going to go over all the
documents but I want to ask you this question. The jurors
have access to the interrogatories, they can deal with it,
and you've given them your opinion on those answers to
interrogatories. Let me ask you, because a company in the
1960s, the manufacturing company, collected some newspaper
articles, that would be a good thing, not a bad thing, on
asbestos?
A Right.
Q And the fact that Ferro Engineering may have had a meeting
in January, I think of 1969, to discuss asbestos, that would
be a good thing, not a bad thing?
A To discuss asbestosis and diseases caused by asbestos,
yes, that would be a good thing.
Q And the fact that asbestos -- Ferro Engineering was trying
to get asbestos out of its Ferroboard linings in the early
1970s, that would be a good thing, wouldn't it?
A Yes.
Q And the fact that when you see a warning label in Ferro's
files that was put on, at some time when it still had
asbestos on it, that would be a good thing?
A Well, the warning label -- the idea of a warning label is
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definitely better than no warning at all. The time of when
that warning label is put on is really very hard to know.
But the exact text of the OSHA warning language, which is
unlike any warning that any company ever voluntarily applied
before 1972, so it couldn't, in my opinion, have come before
then.
Q Okay. But nothing you saw in the interrogatory answers
led you to believe that Ferro was hiding the ball with
respect to either the knowledge about asbestos or trying to
not do something about it.
A Well, it seems that they could have done something between
1969 and 19 -- whenever they put the OSHA warning on, to warn
people about the hazards. And there are other ways. When
you're selling products you can put it in your brochures, you
can send people around to your major customers, you can tell
them about the dangers.
Q Dr. Castleman, thanks for coming out here. That's all the
questions I have. Thank you very much, sir.
THE COURT: Redirect?
MR. HART: Yes, sir. I'll get us out by lunch.
REDIRECT EXAMINATION
BY MR. HART:
Q Dr. Castleman, Exhibit 502 is the patent application Ferro
filed in 1969; is that correct?
A Yes.
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Q And you had an opportunity to review that?
A I've looked at that, yes.
Q And do you see -- this is after they had their newspaper
articles about asbestos, correct?
A Yes.
Q This is after they had their meeting and they discussed
asbestosis and other diseases, correct?
A Yes.
Q And this patent application talks about putting a specific
type of asbestos called amosite in the new product they were
developing called Ferroboard and they're asking for a patent
on it; is that correct?
A That appears to be the case, yes.
Q Does the patent application provide any information they
were going to warn users about that?
A No, it doesn't.
Q Any information that they began warning users after they
began selling this material, other than the vague or undated
notice they put in their answers to interrogatories?
A No.
Q Is the actions of Ferroboard, with the knowledge available
to them through the public health, with the knowledge
available to them through the newspaper articles, with the
knowledge available to them in their own internal meeting, to
add amosite asbestos to a product and get a patent for it the
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actions of a responsible company from a public-health
perspective?
MR. HALL: Objection. That misstates the evidence.
THE COURT: That will be for the jury to decide.
I'll permit the witness to answer.
A This was a time when there was a great deal known about
the hazards of asbestos in the late '60s early '70s. We
haven't learned much since then about how lethal asbestos
dust is. So introduction of a new asbestos product at that
time should have been accompanied by efforts to at least warn
people about it.
Q Thank you, sir. With regard to the questions you were
asked about Insulag, you indicated you would hold a
manufacturer to a higher standard than a seller, and that's
because a manufacturer would have the opportunity to get
information from its employees; is that correct?
A Well, information relevant to the health and safety of its
employees and through -- through various types of insurance,
the group life, Group Health, other kinds of -- worker's
compensation. Employers had bottom-line reasons for paying
attention to things affecting the health of their employees,
even if they were simply looking at it from a bottom-line
point of view, that those kinds of considerations wouldn't
apply to companies which were sellers of products that they
were selling that someone else had manufactured.
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On the other hand, you would expect some responsibility to
be shown by the sellers of products and not just sell
anything that they could without giving any thought to
whether people were properly warned about a recognized
hazard.
MR. HALL: I'll move to strike the nonresponsive part
of that, specifically the last two to three sentences.
THE COURT: I'll permit the answer to stand.
Q By the early 1970s was it generally known that
high-temperature insulating cements contained asbestos?
A Well, it was certainly well known in the industry. Not
necessarily to the workers, I'm saying.
Q Okay. That was my question. If you're a seller of
high-temperature insulating cement in the late '60s and early
'70s, was it generally known that that cement contained
asbestos?
A I think in industrial circles that was widely understood.
Q By 1973, would a seller of asbestos insulating,
high-temperature insulating cement, have any reason not to
investigate, research, or test the products or label them for
their content, asbestos, before they sold them to a user?
A No.
Q From a public-health perspective?
A No.
Q Doctor, let me ask you to assume that the testimony in
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this case will be that after asbestos-free Insulag was
developed in 1972, that it continued to be sold through the
spring of 1974, March 31, 1974. Would you assume that for
me?
A You're talking about the asbestos-containing stocks?
Q No. They continued manufacturing and selling both types
of products through March 31, 1974.
A Now I understand your question. I'll accept that for the
purpose of the next question.
Q Would you accept that the evidence in this case will show
that?
A Yes.
Q Would warnings be required of the sale of high-temperature
insulating cement?
A I think they would have been -- did you want to say
something?
MR. HALL: Yes. I'll object as an improper
hypothetical as it relates to a seller as opposed to the
manufacturer of the product.
THE COURT: Well, why don't you rephrase and identify
whether you're including both or one or the other.
Q The testimony in this case -- assume the testimony in this
case will be that Quigley continued to sell
asbestos-containing Insulag cement through March 31, 1974.
A Okay.
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Q Over a year after they had available Insulag AF insulating
cement.
A All right.
Q And that Pioneer Sand cannot deny it sold
asbestos-containing insulating cement to Bethlehem Steel in
Seattle through the 1974 time period.
A Okay.
Q If the jury believes Pioneer Sand and Gravel continued to
sell asbestos-containing Insulag cement to Bethlehem Steel
through 1974, should that product have had a warning on it,
from a public-health perspective?
MR. HALL: Same objection. It's an improper
hypothetical.
THE COURT: I'm going to overrule the objection.
I'll let the jury sort out the facts relating to the
hypothetical.
A Yes. I think that not only from a moral and ethical point
of view and based on what was known about the lethality of
asbestos by 1972, but because there were OSHA regulations
that also would have applied to a product like this which
under foreseeable conditions could give rise to significant
asbestos exposures.
MR. HALL: I'll move to strike the nonresponsive part
as to moral and ethical.
THE COURT: It will be stricken. It's not responsive
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to the question.
MR. HART: But the rest of the answer stands? Thank
you.
Q So, doctor, with respect to Lone Star, would you give them
a pass in 1974 for selling a product without a label saying
it was asbestos or a label warning the user?
MR. HALL: Objection, argumentative.
THE COURT: Sustained.
Q Would any of the issues raised by counsel in his
examination to you, those brochures, that flier, the OSHA
requirements to the employer, change the public health
responsibilities of a seller of Insulag in 1973 and '74?
MR. HALL: Objection. Calls for a legal conclusion.
THE COURT: Overruled. You may answer.
A No.
Q And the OSHA regulation you were asked about in 1972, it
imposed an obligation to place caution labels on all raw
materials, mixtures, scrap, waste, debris, or other products
containing asbestos or their containers; is that correct?
A Yes.
Q That applied to manufacturers?
A Yes.
Q That applied to sellers?
A Yes.
MR. HART: Thank you. No further questions.
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MR. HALL: No questions, Your Honor.
MR. ANDRE: No questions, Your Honor.
THE COURT: Thank you, sir. You may step down.
You're excused. Have a nice day. We'll take our noon recess
at this time. Let's take about an hour and five minutes.
You're reminded not to discuss the case unless you're all
together in the jury room. We'll be in recess until about
five after one.
(The following occurred outside the presence of the jury.)
THE COURT: We discussed this proposed limiting
instruction. I've attempted to look at the cross, and the
only place I see it raised was a place where I think you
moved to strike, and I granted that motion. Is there any
other place in here where you think we would need to have
some sort of limiting instruction?
MR. ANDRE: I interrupted twice when I knew where he
was going. Mr. Hart tried to do the same thing. He wanted
to talk about it so much.
THE COURT: Well, I don't think he did talk about it.
That's my -- unless you can point me to a page and line in
the transcript.
MR. ANDRE: He didn't mention a particular study.
THE COURT: All right. I'm going to decline, then,
to give the limiting instructions you were proposing this
morning.
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MR. HART: You excused Dr. Castleman, didn't you?
THE COURT: Yes.
MR. HART: Thanks. And do you have anything after
lunch before we come back, any other matters?
THE COURT: No.
(The proceedings recessed.)
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AFTERNOON SESSION
(The following occurred in the presence of the jury.)
THE COURT: Ladies and gentlemen of the jury, the
parties have agreed that a defense expert witness can be
called out of order. He's apparently not available next week
so we're going to interrupt the plaintiff's case and allow
the defense to call their witness at this time. You may
proceed.
MS. GANT: ON Marine calls Dr. James Rock.
JAMES ROCK
Having been sworn under oath, testified as follows:
THE CLERK: For the record, will you state your full
name, please, and spell your last name.
THE WITNESS: James Rock, R-O-C-K.
THE COURT: We need an address for the record. It
can be your office address if you prefer.
THE WITNESS: 2514 Oak Circle, Bryan, Texas.
B-R-Y-A-N. 77802.
THE COURT: Thank you.
DIRECT EXAMINATION
BY MS. GANT:
Q Good afternoon, Dr. Rock.
A Good afternoon.
Q Please tell the jury your profession, sir.
A I'm a certified industrial hygienist and a licensed
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professional engineer.
Q How long have you been a certified industrial hygienist?
A Since 1977.
Q And how long have you been a professional engineer, sir?
A Also since 1977.
Q With respect to your educational and professional
background, have you prepared a PowerPoint slide that might
be useful for the jury, sir?
A I prepared a PowerPoint slide. I'll let the jurors decide
if it's useful.
Q If you could please pull up, the first slide.
THE COURT: Have you seen these slides, counsel?
MR. HART: Yes, Your Honor. And during lunch I told
counsel I objected to three of the slides and I asked her if
she would take care of the objections. And just when I
walked in she said she had not taken care of the objections.
So I do object to some of these.
MS. GANT: Excuse me, were you finished, sir? We are
not planning to show any of the slides to which Mr. Hart
objects until the court rules on any objection.
THE COURT: Well, I haven't seen the slides so I
don't know. Are they exhibits or is it just for
demonstrative purposes?
MS. GANT: They are demonstrative exhibits, Your
Honor.
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THE COURT: Well, when you get to any that he has
objected to, you should put them on the screen, but take them
away from the jury's viewing.
MS. GANT: I understood that, Your Honor.
MR. HART: Thank you, Your Honor.
Q Dr. Rock, is this a slide that you prepared, sir, that
summarizes your educational and professional history?
A Yes, it is.
Q Could you please detail your educational and professional
history, sir, using this slide as a reference?
A I have a Bachelor's Degree in electrical and electronic
engineering from Syracuse University, Master's and Ph.D. in
biomedical engineering from Ohio State University. I served
in the United States Air Force for 27 years as a
bio-environmental engineer. And progressed to become one of
the four commanders of the USAF Occupational and
Environmental Health Laboratory.
I was a senior lecturer in the industrial hygiene
engineering department at Texas A & M for five years. I
taught all the graduate and undergraduate courses in those
two curricula.
I am a fellow of the American Industrial Hygiene
Association and past president of that association. It is
the largest industrial hygiene professional association in
the world. I'm a past director of the International
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Occupational Hygiene Association. At the time I served on
the board we had 26 member nations, and we had
non-governmental organization status so that we could make
policy recommendations to the World Health Organization and
to the International Labor Organization.
I currently hold forth as the vice president for research
and engineering for a small Texas corporation called TUPE,
Inc.
Q Dr. Rock, are you a published author with respect to
industrial hygiene, sir?
A Yes. With respect to industrial hygiene.
Q Could you please detail for the jury some of those
publications, please?
A In terms of peer-reviewed publications, I have chapters, I
think now in nine books. I have an assortment of about
two-dozen articles on various aspects of industrial hygiene.
Industrial hygiene is the profession that tries to keep the
stress of the workplace separated from the workers. We deal
with now about 1300 stressors in the workplace. There are an
estimated 900,000 chemicals in commerce in the United States
today. So we have standards for a very small fraction, about
one percent of the materials that are actually in the
workplace.
Q Sir, did my office ask you to provide opinions in this
matter based on your knowledge, training and experience as a
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certified industrial hygienist and engineer?
A Yes, you did.
Q Could you please briefly describe for the jury the
materials you relied upon when completing your analysis?
A The case-specific materials that I relied upon are the
documents submitted to the court by the parties in this
litigation, and depositions from some of the witnesses that
you'll hear, and some witnesses that you may not hear from.
There were some documents from corporate files, from
On Marine Engineering -- I'm sorry, ON Marine Services or
Ferro Engineering, one of their divisions.
Q Those were materials that were produced in this case, is
that your understanding, sir?
A Yes.
Q I'd like to talk to you a little bit about asbestos, sir.
What are the primary forms of commercial asbestos?
A The simple way to say it is white, brown and blue. If you
want to get scientific, it's chrysotile for the white,
amosite for the brown, and crocidolite for the blue.
Q Have you prepared a slide that might be useful in
depicting these different forms of commercial asbestos for
the jury, sir?
A I did.
THE COURT: Now, these are not being published to the
jury at this point.
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MS. GANT: I was giving Mr. Hart an opportunity to
review and confirm this is a slide to which he has no
objection, Your Honor.
MR. HART: I've already told counsel, I don't object
to this one.
Q Dr. Rock, if you could please use this slide to describe
to the jury these commercial forms of asbestos, please.
A Okay. The top row has minerals that are in what I call
"solid" but the geologists call the "massive" form. All of
these minerals occur in nature. And somewhere between 80 and
95 percent of them are in the solid and massive form. The
bottom shows the fibrous forms. When these particular
minerals are in fibrous forms, they can be mined. And then
we can strip the fibers out of the ore, and that becomes
asbestos as we know it commercially. Only a very small
proportion, on the order of ten, maybe fifteen percent of
these minerals occur in the fibrous forms in nature. It
takes a special condition of temperature, steam and cooling
to get the fibrous forms to form.
Q Dr. Rock, in your role as a certified industrial hygienist
or a professional engineer, do you have an understanding
about why companies historically included asbestos in their
products?
A Asbestos is a natural mineral, so you can get it out of
the ground. And it has properties that are very beneficial
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from an engineering perspective. Two of the three kinds of
commercially valuable asbestos have higher tensile strength
than steel. So if you need to hold something together they
work well.
If you heat them up to higher temperatures, they're very
definitely stronger than steel until they reach the point of
breaking down.
Q And to back up a moment, Dr. Rock, you mentioned there
were three primary types of commercial asbestos?
A Yes.
Q To the best of your understanding, is crocidolite at issue
in this litigation?
A Not in this litigation today.
Q Okay. And what color of asbestos would the crocidolite
reference, sir?
A That would be the blue. So it would be the lower left
corner on the slide.
Q And to the best of your understanding, sir, what types of
asbestos are at issue in this litigation?
A I misspoke, it's the middle one on the bottom row in this
slide. In this litigation chrysotile and amosite is at
issue.
Q I'd like to speak to you, sir, about how asbestos fibers
react to heat. So could you please describe for the jury,
generally, what happens to asbestos as it interacts with
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heat, sir?
MR. HART: Objection, Your Honor. Foundation.
THE COURT: I haven't heard a foundation yet.
Q Dr. Rock, in your capacity as a professional engineer and
an industrial hygienist, have you had an opportunity over the
course of your career to examine the manner in which asbestos
is going to interact with heat, sir?
A I have, yes.
Q And can you please detail that background for the jury,
please?
A In the Air Force we had lots of vehicles that had brakes.
In 1968 through '72 there was a great deal of activity within
the federal government about asbestos in brakes and whether
it was a health hazard or whether it wasn't. Brakes get hot
when you use them. And in 1968 Jeremiah Lynch published an
article where he looked and discovered the asbestos in brake
linings of the chrysotile variety converts to a non-toxic
forsterite. And that's what he found in the brake dust.
Subsequent papers have reconfirmed that with additional
details about how the asbestos reacts to heat.
Q And so can you please walk through an asbestos fiber, how
is that going to specifically react to heat as those
temperatures increase?
MR. HART: Objection, Your Honor. I object. The
asbestos by the proffering party used amosite, and the
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example he just gave was from a different product. It's a
study addressing brake linings using chrysotile asbestos,
totally different than the product at issue in the case, the
Ferroboard liner composed of asbestos. And Your Honor has
already ruled that certain studies dealing with other types
of products are not relevant as a foundation to offer
opinions in this case. Therefore, I object to Dr. Rock
offering his opinions based upon dissimilar products and
dissimilar types of asbestos.
MS. GANT: In ON Marine's discovery responses, Your
Honor, it states that the Ferroboard liner was either amosite
or a combination of chrysotile and amosite fibers. And
because of that, we need to address both of those in terms of
how they react to heat.
MR. HART: But it's a brake lining. It's not a steel
product. It's in a braking process that's entirely different
than the steel-making industry. No comparability between the
two processes between the two products, Your Honor. And the
products you've already reviewed were closer aligned than
these products. And I think it's something completely
disparate.
MS. GANT: I'm happy to lay a foundation to have Dr.
Rock address whether chrysotile in a brake lining is
comparable to chrysotile in a Ferroboard liner, Your Honor.
MR. HART: It's the product. Brake lining is
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completely different than the Ferroboard thing. A brake
lining is not an insulation product.
THE COURT: The question is how it reacts to heat,
that's the subject she wants to address. It seems to me that
it's possible a foundation could be made. I haven't heard it
yet.
MR. HART: Thank you, Your Honor.
A If I may, Your Honor --
THE COURT: Well, I think we -- let her ask the
questions.
Q Dr. Rock, explain for the jury, please, precisely this
question, whether chrysotile in one product is going to react
in heat the same way that chrysotile is present in a
different product.
A There will be some difference in the reaction to heat at
the very high temperatures, depending what other molecules
are around the fiber. But both types of asbestos that we're
talking about today are called hydrated metallic silicates.
And hydrated means there's water molecules incorporated into
the crystalline structure. When you start heating them, the
first thing that boils out of the crystal is the water. So
the water vapor comes out, the crystal changes shape, either
modestly or dramatically. It becomes brittle and becomes
less strong. So that's the sequence of events. And whether
you heat it with molten steel or whether you heat it in a
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brake pad, it's my opinion the effect is about the same. And
if you've ever seen a NASCAR photo of braking in a NASCAR
race, the discs that the pads come up against turn bright red
because they get almost as hot as steel.
MR. HART: Objection, Your Honor, those do not
contain asbestos. Those are non-asbestos brake linings.
THE WITNESS: Not today.
THE COURT: He's addressing me, not you. And your
objection is what? She's trying to lay a foundation. I
haven't heard a foundation yet.
MR. HART: He's laying a foundation, but then giving
an example where brake linings get hot. And they're not even
asbestos brake linings. They're not even the kind that
Jeremiah Lynch studied that he's trying to base his opinions
on.
THE COURT: All right. Ask another question.
MS. GANT: Sure.
Q Dr. Rock, if you were to look at how a chrysotile fiber of
asbestos reacts to heat, does the source of that heat matter?
A Not really, no.
Q Does the temperature itself matter?
A The temperature achieved by the fiber matters, yes.
Q Okay. And in your experience and based on your knowledge
and experience as a certified industrial hygienist, is it
your understanding that a chrysotile fiber in one product is
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going to react similarly to a chrysotile product in another
product, provided they are in similar concentrations?
A Yes.
Q And you discussed, sir -- strike that, please. And so how
is a chrysotile fiber going to react to heat, whatever the
source, if you could walk us through that process, please.
A As I said earlier, it will first lose the water that helps
hold it together. Then the crystal will recrystallize into a
different structure. Then with chrysotile, as you get up
around 800 degrees Celsius, the fiber ceases to be its normal
scroll-like. And the normal chrysotile fiber is a sheet
that's rolled around itself like a scroll. That scroll
becomes a solid needle-like substance and the needles start
to stick together. Then finally, at the high temperatures,
it melts and it becomes like molten glass.
Q Dr. Rock, are you familiar with the term tensile strength?
A I am.
Q Could you please describe to the jury what tensile
strength is, please, sir?
A Tensile strength is the force that you can pull on a piece
of rope or on an asbestos fiber or steel wire. And the
strength generally is rated at before it breaks.
Q How does the application of heat impact the tensile
strength of a chrysotile fiber?
A As the water is driven out of the crystal, the tensile
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strength of the fiber decreases, it becomes weaker.
Q And does tensile strength have any impact on whether or
not that chrysotile fiber remains in a toxic form?
A There's evidence from animal studies and less so from
human studies that fiber, whether asbestos or not, that are
more durable in the lung are more potent for disease. When
you have a fiber that's been heated and has a lower tensile
strength, it breaks more easily into small pieces, can be
cleared from the lung the same way ordinary dust is. And the
incidence and intensity of disease, of all of the asbestos
diseases, is therefore lower with weaker fibers.
Q So, Dr. Rock, if you are taking chrysotile fibers and you
are exposing them to temperature, is there a point at which
that chrysotile fiber is going to become a non-toxic
substance?
A Above 900 degrees Celsius. And I agree here with Dr.
Longo, the asbestos fibers cease to be a source of asbestos
diseases.
Q Now, what substance does that chrysotile fiber, once it
detoxifies, what does it turn into?
A Along the way of detoxifying, the chrysotile fiber becomes
a fiber called forsterite, for which we have no information
of any toxicity. And then as temperature gets a little
higher, it melts and it becomes a glass. And at that point
it's no longer respirable and not a respiratory hazard.
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Q So as a board certified industrial hygienist, do you have
an opinion as to whether exposure to forsterite increases the
risk of mesothelioma?
A I've seen no evidence that it does. So my opinion is it
does not.
Q And with respect to amosite asbestos, what happens to an
amosite asbestos fiber when it is exposed to heat?
MR. HART: Excuse me, foundation as to amosite.
THE COURT: Sustained.
Q Dr. Rock, in your capacity as a board certified industrial
hygienist, have you had an opportunity to review how amosite
may react to heat, sir, in the course of your career?
A I have.
Q Okay.
MR. HART: Objection, Your Honor, this is outside the
scope of his deposition and his reliance materials provided
to us.
MS. GANT: I don't believe that's an accurate
statement, Your Honor. Dr. Rock testified at his deposition
as to both chrysotile and amosite fibers and expressed
opinions in a written report.
MR. HART: We asked were there any articles that he
based an opinion on amosite, and he says, "I don't recall
any." He did talk about the Lynch paper, which is the
chrysotile paper.
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THE COURT: Well, I haven't had the benefit of
reading the deposition, so if counsel is correct, then I'm
not going to let you go into it.
MS. GANT: He expressed opinions as to the impact of
heat on amosite fibers at his deposition, sir.
MR. HART: Then we object on foundation if he doesn't
have a basis to give those opinions. We asked for the basis
at the deposition. He could not cite us to any published
article, any study, any information other than the Jeremiah
Lynch paper he just described, which deals with chrysotile.
MS. GANT: If I may, Your Honor, this is not -- this
is -- no one is being blindsided here. Dr. Rock expressed he
had an opinion on this basis. And there are numerous studies
that recited --
THE COURT: Did he give his opinions in the
deposition?
MS. GANT: Yes, sir. And there were numerous studies
cited by Ms. Raterman, Dr. Longo, those were materials not
cited in their deposition and they did not give reports. So
by way of example, Dr. Longo expressed opinions about the
EPA.
THE COURT: We're not talking about the plaintiff's
experts now, we're talking about this particular expert and
what he said or didn't say in his deposition.
MS. GANT: He did say, sir, he testified about the
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impact of heat on amosite fibers. That is an opinion that
has been disclosed.
THE COURT: All right. I'm going to permit the
witness to continue with the testimony.
MR. HART: All right. And may I inquire, when it's
my turn, on the foundation?
THE COURT: Certainly.
MR. HART: Thank you, Your Honor.
Q So, Dr. Rock, with respect to amosite asbestos, does
amosite go through a similar process to chrysotile when it is
exposed to heat?
A Yes. Amosite starts as a crystalline needle, hydrated
metallic silicates. As the water is driven off, the physical
properties of the needle change, and eventually at a slightly
higher temperature than for chrysotile, it too will melt.
And for both fibers, if they're not in a petri dish or
asbestos is the only thing present, there may be contaminants
around so that the final melting stage looks more like dust
or ash than it does like a pool of molten glass.
Q So is there a point at which an amosite fiber, when
exposed to heat, is going to detoxify, become a non-toxic
fiber or non-toxic substance?
A It becomes less toxic somewhere between 3 and 500 degrees
Celsius and becomes non-toxic somewhere between 900 and 1,000
degrees Celsius.
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Q What does it become at those upper temperatures? What
substance does it become?
A Well, the best way to describe it in the context of this
case, it becomes like an ash.
Q Okay. And from your perspective as a board certified
industrial hygienist, is that ash toxic?
A It's not known to be toxic. It's not known to increase
the risk of mesothelioma. As an industrial hygienist I don't
advise the inhalation of any avoidable dust.
Q There has been some testimony in this case, Dr. Rock, that
one gram of five percent amosite can generate 90 billion
fibers. Do you have an opinion as to whether 90 billion
fibers could remain after chrysotile or amosite asbestos has
been heated to over that, say, 900 or 1,000 degrees Celsius?
A I would be very surprised if there were respirable fibers
after the heating to those temperatures.
Q Are you aware of any published governmental or scholarly
materials that address this topic, sir?
A And the topic in this question is --
Q Excuse me, and the topic being the impact of heat upon
amosite or chrysotile fibers?
A The earliest report that laid the foundation for all
subsequent reports was written by Dr. Vorwald in 1951.
MR. HART: Excuse me, Your Honor, may we have a side
bar, please? This goes to his deposition foundation and
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disclosures made there. It will avoid repeated objections.
(Court and counsel met at side bar as follows:)
MR. HART: Your Honor, they're getting into the
objectionable portions of the slides and the bases I object
to them. At his deposition he revealed the Lynch paper and
another paper that the lawyers had sent him from 2011. He
didn't discuss this Vorwald paper, didn't reveal it. Another
paper cited in there counsel has on her slide, the Davies --
Davis or something like that. That's it.
MS. GANT: I apologize. I don't recall off the top
of my head.
MR. HART: Your slide.
MS. GANT: Oh, Davis is on my slide, yes.
MR. HART: None of this was disclosed at his
deposition or his opinions to us. This is reliance materials
that we were not provided. And we asked specifically, do you
know of any articles discussing amosite? And he says, "I
don't recall any." And I can give you the deposition
transcript where he says exactly that. And we couldn't
prepare --
THE COURT: Well, I indicated in earlier rulings that
it would be bound to their depositions. If he didn't
disclose, it was asked and didn't disclose it, he can't
testify about it.
MS. GANT: He testified to the opinion, Your Honor,
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and some of the materials that he --
THE COURT: If he didn't -- if his opinion is based
on reports that he didn't disclose, he can't talk about those
reports that he didn't disclose, or those studies. Whether
he has an opinion that remains, I don't know.
MR. HART: And that's the trouble we have is we
couldn't test the validity of his opinions without the
underlying information. And that's why I was objecting to
him talking about amosite, because he didn't give us any
basis to judge it. And I think it's a Daubert issue.
THE COURT: You didn't move to challenge him.
MR. HART: We didn't move it --
THE COURT: It's a little late to --
MR. HART: Under Ninth Circuit rules I'd have to
object now even if you had ruled pretrial.
THE COURT: I understand.
MR. HART: This is a very specific one. These three
articles they have listed there, we asked, we tried to get
it. After the deposition, we didn't receive any disclosures
from counsel saying: Here's what he was talking about.
MS. GANT: If I may.
THE COURT: I think I've heard enough. If he didn't
disclose the articles, he can't talk about those articles.
MS. GANT: Your Honor, may he -- I didn't mean to
interrupt, sir. May I ask a question?
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THE COURT: Yes.
MS. GANT: There are some materials that were cited
by Dr. Longo that we would ask he be able to respond to Dr.
Longo's position on, as Dr. Longo similarly did not cite the
APA materials in his deposition.
THE COURT: This is not Dr. Longo, this is Dr. Rock.
And his deposition was taken. And you should be bound by
whatever he said or didn't say in the deposition.
MR. HART: Thank you, Your Honor.
(The side bar concluded.)
MR. HART: Your Honor, I move to strike Dr. Rock's
last answer.
THE COURT: And the last answer I think dealt with a
report from a Dr. Vorwald. And that answer will be stricken.
The jury is to disregard it.
The court previously ruled in connection with motion
practice that the lawyers presented to me that the witnesses
should be limited to what they relied upon and talked about
in their depositions, which were taken prior to trial, so
that the other side could understand what a particular
witness was going to say.
And apparently this report -- I haven't read the
deposition -- but counsel is representing to me that that
report was not testified to at the deposition. That's the
basis for my ruling. And there may be other issues that we
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have to address. But that's the reason why I'm attempting to
draw a line and allow the witness to testify where he
provided the plaintiff's counsel with information at the dep.
Go ahead and ask another question.
MS. GANT: Thank you, Your Honor.
Q Dr. Rock, I'd like to speak with you about a 1994 powder
diffraction study by Jeyaratnam and West. Dr. Longo
testified that --
MR. HART: Excuse me, Your Honor, this was something
else that was not discussed in Dr. Rock's reliance materials
or deposition.
MS. GANT: I don't intend to ask Dr. Rock about any
reliance on this. I tend to ask whether he agrees with Dr.
Longo's analysis of the study, Your Honor.
MR. HART: That's not a proper question to an expert.
It's something that he did not consider, he did not review.
THE COURT: All right. I'm going to sustain the
objection to the last question, which was, "I want to speak
to you about this study by this --
MS. GANT: Jeyaratnam.
THE COURT: Jeyaratnam. Ask another question.
Q Dr. Rock, in your review in this matter, did you have an
opportunity to review any data about the temperatures reached
specifically by the Ferroboard liners?
A I did, yes.
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Q And did you rely upon this information for purposes of
forming your opinions?
A I did, yes.
Q The data that you reviewed, is this the type of data that
is commonly relied upon by others in the industrial hygiene
or engineering communities?
A Yes.
MR. HART: Excuse me, Your Honor, is this the Mishra
-- this is something else that was not relied upon by the
witness. He didn't discuss it. He didn't disclose it to us.
He didn't even know about it at the time when we took his
deposition. And counsel hadn't bothered to tell us since
that time he was going to testify about this. I'm sorry to
keep interrupting.
MS. GANT: That information was disclosed in the
pretrial order, Your Honor. And Dr. Mishra had not been
deposed at the time Dr. Rock had been deposed. That was not
something logistically feasible. It was clearly stated in
the pretrial order that Dr. Rock intended to review the
materials by Dr. Mishra and provide an opinion on that basis.
MR. HART: Your Honor, with all due respect --
THE COURT: Just a minute. I'm going to overrule the
objection to the last question which was, "The data you
reviewed is this the type you commonly review? Answer:
Yes." That will stand. We'll have to deal with this
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question-by-question.
MR. HART: She's pulling up the data by the other
witness, and that's what I'm objecting to. I didn't object
to those questions. There's another witness who is going to
testify who did a study that was never shown to Dr. Rock
until probably today at lunch. But it was something that we
didn't have the benefit of to ask him about.
THE COURT: You can voir dire him and ask him when he
first learned about it and whether he testified about it or
provided it to you in the deposition. You can ask him now.
MR. HART: Thank you.
VOIR DIRE EXAMINATION
BY MR. HART:
Q Dr. Rock, when did you first review the information from
Dr. Mishra?
A I believe it was the 29th of November when I got his
deposition transcript. It might have been the first two days
in December.
Q Well, this is the 6th day of December, so you might have
gotten it this week?
A Or last week, yes.
Q And that's when we started trial, on Monday?
A Right.
Q We did the pretrial last Wednesday. You got it after the
pretrial; is that fair, after Wednesday?
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A If the 29th is after Wednesday, then, yes.
Q According to my calendar, sir, last Wednesday was the
27th. So the 29th was Friday. After Thanksgiving?
A Yes. Then I got it after your pretrial.
Q And you did not have this at your deposition? We didn't
talk about it?
A That's correct.
MR. HART: Your Honor, we move to exclude any
discussion about this by Dr. Rock.
MS. GANT: And if I may ask a foundational question,
Your Honor?
DIRECT EXAMINATION (Cont.)
BY MS. GANT:
Q Dr. Rock, did you receive Dr. Mishra's report before you
received Dr. Mishra's deposition?
A I did.
Q When did you receive his report, sir?
A I believe it was the middle of October.
Q And that was after you had been deposed in this case,
correct?
A Yes, that's correct.
THE COURT: Help me understand what Dr. Mishra's
report has to do with what this witness is going to be
relying upon to testify about.
MS. GANT: Dr. Mishra will testify that he did
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something called a finite element analysis.
THE COURT: He's one of your witnesses, we haven't
heard from him?
MS. GANT: He measured the temperatures reached by
the Ferroboard liners.
THE COURT: I'll wait to hear from him. This is to
what extent can this witness testify to which he didn't
disclose under his deposition.
MS. GANT: Under the case schedule - this was under
the King County schedule -- we timely disclosed Dr. Mishra's
testimony. It just so happened that happened to be after Dr.
Rock was deposed. Dr. Rock was deposed when this case was
going to go to trial in King County mid-November. At the
point in which this went to federal court, Dr. Mishra was,
again, timely disclosed. It just happened to be after Dr.
Rock was deposed. This is something that we clearly stated
in the pretrial order. This is not something where people
should be surprised.
THE COURT: What is in the pretrial order that you're
relying upon?
MS. GANT: If I may grab a copy of it, Your Honor.
MR. HART: Your Honor, I have the pretrial order and
under item, Expert Witness No. 1, it's on page 12 of my copy
of the pretrial order, Your Honor --
THE COURT: Just a moment.
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MR. HART: And where they disclose Dr. Rock. Number
one, we don't believe it's proper to change any disclosure at
the pretrial stage. This was signed last Wednesday. And
number two, Dr. Mishra's name is not mentioned in here, let
alone his report.
MS. GANT: This indicates Dr. Rock is going to
testify that asbestos in the Ferroboard liners converted to
innocuous substances when exposed to the high temperatures of
molten steel.
THE COURT: What line?
MS. GANT: Approximately lines 21, 22. This is the
opinion.
THE COURT: Well, it's in the pretrial order and I'm
going to permit him to testify about opinions that are
related to what's stated here. But he won't be permitted to
rely upon things which weren't disclosed during his
deposition.
MS. GANT: If I may, Your Honor, it was a logistical
impossibility, because Dr. Mishra was still timely disclosed,
it just happened to be that that was after his deposition.
THE COURT: Well, does this witness have -- without
relying on some other expert or some other report -- a basis
for testifying that any asbestos in Ferroboard liners would
convert when exposed to high temperatures of molten steel?
MS. GANT: Yes, Your Honor, based on his knowledge
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and experience as a certified industrial hygienist.
THE COURT: Well, I haven't heard that foundation,
yet.
MS. GANT: I'll be happy to make it.
THE COURT: If you can lay it, I'll allow the witness
to testify about it.
Q (By Ms. Gant) Dr. Rock, over the course of your
professional career, have you had an opportunity to examine
how asbestos reacts to heat?
A Yes.
Q And over the course of that career -- strike that, please.
Can you please tell the jury the context in which you gained
that experience, sir?
A In the '80s and into the early '90s federal agencies,
including the U.S. Air Force and EPA, were looking at
something called in situ vitrification as a means of
disposing of hazardous materials, including asbestos.
Members of my laboratory were involved in the field studies
of that. And we knew that when you have asbestos in
55-gallon drums, and other things in a landfill, that you
melt that to make it glass, the asbestos is no longer toxic.
And that was all forms of asbestos.
Q And so members of your laboratory participated in the
underlying data for this research. Did I understand that
correctly?
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A Yes. They were part of the field team.
Q Did you have an awareness of this research while it was
being conducted?
A I did.
Q And is that something that informs your opinions in this
case?
A Yes. It's one of the bases for my understanding that
asbestos melts when it gets hot.
Q Do you have other bases for that opinion, sir?
A Yes.
Q Please detail those bases for the jury.
A As I mentioned earlier, the asbestos is formed from molten
rock, when there's enough steam around and the pressure is
right and it's cooling off at the right rate. So it starts
as a melt. We can melt it again if we add enough heat, which
means adding energy. And at that point it's no longer
asbestos. It does not have the toxicological properties of
asbestos fibers.
Q And so setting aside what Dr. Mishra will testify to, do
you have an opinion, sir, as to whether chrysotile fibers in
a Ferroboard liner that was present at Bethlehem Steel would
have reacted in the same way that you have previously
described chrysotile fibers reacting to heat?
A Yes.
Q And please detail the basis of your opinion to the jury.
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A Well, the basis is the well-known, well-established
dehydration of asbestos fibers as they heat up, and the
eventual transformation of those fibers into a different
crystalline structure with a bigger diameter, which turns out
to be both not respirable and not toxic if ingested.
Q And similarly, do you have an opinion, sir, as to whether
amosite fibers that may have been present in a Ferroboard
liner at Bethlehem Steel, would they have reacted in the same
manner to heat that you've previously testified to?
A The amosite fibers react in a similar fashion. But the
points where they change structure tend to be 50 or
100 degrees higher than for chrysotile. Chrysotile is not
quite as thermally resistant as the amosite.
Q So, do you have an opinion, sir, as to whether any
chrysotile in a Ferroboard liner that may have been present
at Bethlehem Steel, after exposure to -- well, let me back
up. Do you have an understanding about what temperatures
that molten steel was poured at, at Bethlehem Steel?
A The pouring temperature for steel is on the order of
1,600 degrees Celsius, so about 50 percent above the end of
the asbestos form of these minerals. They end between 900
and a thousand degrees. And steel gets poured around
1,600 degrees Celsius.
Q For those of us that are not particularly familiar with
Celsius, can you please convert that into a Fahrenheit
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number?
A It's about 2,900 degrees Fahrenheit.
Q So if an asbestos board liner was exposed to 2,900 degrees
of molten steel at Bethlehem Steel, what would have happened
to any chrysotile fibers inside of those Ferroboard liners?
A As the heat wave progressed through the Ferroboard liner,
the chrysotile would be dehydrated, then detoxified, and then
it would be recrystallized. And the testimony from
Mr. Turner and others, I think Mr. Schiller, was that it
looks like dust after it has been used. It's a one-time-use
product. Ash or dust.
Q Is that ash or is that dust, is that a toxic substance or
non-toxic substance?
A With regard to mesothelioma, it's non-toxic.
Q Why do you say with regard to mesothelioma?
A Well, I view all dust as a possible pathogen, even the
so-called nuisance dusts. It's just not health-wise a good
thing to breathe dust. So insofar as the ash has
respirable-size dust particles in it, I still advise against
breathing it. But it has not been shown in animals or
anybody else to cause mesothelioma.
Q And so is it your opinion, sir, that any of that non-toxic
dust or ash, would that have increased the risk of
Mr. Turner's mesothelioma?
A No.
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Q Same --
A In my opinion.
Q And in your opinion as a certified industrial hygienist,
I'd like to ask you those same questions with respect to
amosite. If there was amosite present in a Ferroboard liner
at Bethlehem Steel, would that amosite have converted to a
non-toxic ash?
A As I've testified at my deposition, in my opinion, yes.
Q And is the basis for your opinion what you've similarly
just testified to, sir?
A Yes. It's a different type of asbestos, but it's still in
the hydrated mineral silicate family.
Q And is that non-toxic ash, would that have increased the
risk of mesothelioma for Mr. Turner to the extent that he was
exposed to?
A Not by anything that we know from epidemiology, nothing
from toxicology in animals.
Q Do you have an understanding, based on your review of the
records in this case, sir, as to whether Ferro sold
asbestos-containing, and/or asbestos-free products to
Bethlehem Steel?
A I understand they sold both.
Q And what is the basis of your understanding, sir?
A Oh, there's so many documents in this case. There were
some sales records that were very small and very hard to
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read. There were some letters, I believe, in the file.
Q Okay. And speaking of those, I'd like to draw your
attention to a document that has been previously admitted.
This is Exhibit 3017. Is this a record that you reviewed
when completing your analysis in this case, sir?
A It is, yes.
Q And what is your understanding of what this record is?
A I understand this to be the ledger book in which Oglebay
Norton Company kept track of sales to Ferro Engineering, as
it says at the top.
Q Do you see where I have highlighted 1/28/74?
A I do, yes.
Q What is your understanding, based on your review of the
records in this case, including this, as to the significance
of that January 28, 1974, date?
MR. HART: Objection, Your Honor, I think the record
speaks for itself.
THE COURT: Overruled. You may answer the question
if you can.
A I understand that the 28th of January 1974 was an order
for Ferroboard liner.
Q And do you have an understanding as to whether that is
asbestos-containing or asbestos-free Ferroboard liner?
A I understand that it's asbestos-containing. The next line
says non-asbestos, and I believe that date looks like the
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14th of March, 1974.
Q Okay.
A And I believe everything below that March date was shipped
as non-asbestos Ferroboard liner.
Q What is the basis of that understanding, sir?
A It is testimony -- it wasn't Gabriel -- I guess I forgot
the name of the man who testified about that. He was a
salesman for the company.
Q Okay. Now, would it change your professional opinions in
any way if Ferro only sold Ferroboard liners that were
asbestos-containing between '73 and '76?
A It would not change my overall opinion that asbestos was
not released from the hot top during the creation of ingots
and the pouring of molten steel. Because I believe the
asbestos was converted to a different mineral substance.
Q Okay. I'd like to talk about the melt shop, sir. In your
professional opinion as a certified industrial hygienist, do
you have an opinion as to whether Mr. Turner was exposed to
any asbestos-containing Ferroboard liner in the melt shop?
A I understood from his testimony that he did not work in
the melt shop. So I don't believe he was exposed in the melt
shop.
Q Do you have an understanding about what happened to the
Ferroboard liner itself when it was exposed to that molten
steel at 2,900 degrees?
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A I understand that it was a one-time use product, and that
it was reduced to dust or ash in the course of that one use.
Q Okay. What impact does the fact of this disintegration
have upon your analysis, if any?
A Well, the disintegration is caused by the intense heat
that detoxifies the asbestos by converting it into a
non-asbestos substance. And this is both the chrysotile and
the amosite.
Q With respect to the cooling yard, do you have an opinion,
sir, as a certified industrial hygienist or engineer, as to
whether Mr. Turner was exposed to any asbestos-containing
Ferro product in the cooling yard?
A As I recall his testimony, his -- he didn't work in the
cooling yard, but he occasionally drove the crane that lifted
these ingots into and out of the cooling yard. So he was
125 feet above them. I do not think there was any chance of
an exposure, for two reasons: I don't believe there was any
asbestos in the ingot mold when it got to the cooling yard.
And I don't believe that the dust was getting up to the cab
of the crane.
Q I would like to draw your attention, sir, to a document
that has been previously admitted as Exhibit 563. Dr. Rock,
do you have an understanding of what a sinkhead is?
A I believe I do.
Q And can you please explain to the jury what a sinkhead is?
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A The sinkhead is the part of the steel that, when it's
poured into the ingot mold, resides and is surrounded by the
Ferroboard liner of the hot top.
Q Does this picture contain a portion of that -- does this
depict the sinkhead in any way?
A Yes, I believe it does. And let me see if I can show it,
here.
The narrow-necked part at the top is where the Ferroboard
liner is contained by a cast-iron hot top. The purpose of
that is to maintain molten steel at the top as the steel down
in the ingot itself cools off. And as it cools it tends to
shrink. So the molten steel up here on the top will dribble
down into any crevices that are formed as the steel cools and
maintain the integrity of the ingot. The ingot is the
profit-making part. The steel that's in the hot top contains
slag and other impurities. It's cut off quickly, and it
doesn't go into the rolling mills. It doesn't go for further
processing.
Before hot tops were used, these impurities sometimes
remained in the ingots, and there was a lot of rework
necessary in the steel mills. So the hot top was a quality
control issue whenever you wanted to make high-quality
high-strength steel.
Q Dr. Rock, do you have an understanding, based on your
review of this case or otherwise, about whether it would be
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even practical for a sinkhead to remain on an ingot after it
was taken out of the hot top?
A Well, I guess in a word, it would be incongruous, because
you put the hot top on here in order to collect the stuff
that ruins the steel. To leave it on and send it to the
rolling mill would ruin that batch of steel. So you cut the
garbage off and leave it behind.
Q Do you have an understanding, sir, based on your review of
records in this case or otherwise, whether there is any
portion of the Ferroboard liner that would have been touching
the ingot itself?
A I do have an understanding.
Q And please explain that understanding to the jury, please.
A The hot top is a -- as I'm using the term right now -- is
a cast-iron molding piece that fits there and there.
(Indicating) And pretty much this inner layer of lines that
I've drawn is where the Ferroboard liner would contact the
molten steel in the neck-down area of the sinkhead.
Between this and the ingot there is a ring that goes all
the way around. It's like a donut, it goes all the way
around and sets on the top of the part that becomes the
ingot. In the Bethlehem Steel plant that we're looking at, I
understand that was sand, it was not an asbestos-containing
material.
So the hot top and the Ferroboard liner sat on the sand
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ring, and the sand ring sat on the ingot mold and there was
no direct contact between the ingot that was molded and the
Ferroboard liner.
Q And so do you have an understanding, sir, whether from
your review of records in this case or otherwise, whether
there would be any portion of the Ferroboard liner that would
have come into -- come to be embedded in the actual body of
the ingot as opposed to the sinkhead?
A I can't imagine any way that it happened. There was no
physical contact and there was a sand ring barrier between
the ingot and the sinkhead that is formed inside the
Ferroboard liner that's inside the cast-iron hot top.
Q Okay. The jury has heard testimony, Dr. Rock, that the
next step in the process was that the ingot would be scaled.
So do you have an understanding what scaling is, sir?
A Yes.
Q And please tell that to the jury.
A The steel comes out of the ingot mold after the sinkhead
is cut off. And in order for it to get out, the mold is
first coated with some oily substances that act as a
lubricant when you're taking it out . That creates a scale
on the surface. All kinds of carbon and sulfur and all kinds
of compounds that sit on the surface, they would not be a
good thing to have in the finished steel. So scaling is
scraping those off, then using other techniques to get all of
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those surface impurities off of the ingot before it goes
through the mill.
Q In your professional opinion, sir, was Mr. Turner exposed
to any asbestos-containing Ferroboard liner in the scaling
process?
A No.
Q And in your professional opinion, did any part of the
scaling process increase Mr. Turner's risk of mesothelioma?
A No.
Q What is the basis for that opinion, sir?
A Well, NIOSH studied the steel industry looking for
diseases, and they reported lung cancers, and they identified
the lung cancers as most likely being caused by the organic
molecules that are associated with, in part, with the rolling
and earlier in the process with the ingot mold and de-molding
steps. They did not identify mesothelioma as a risk factor
in the steel industry.
Q The jury has heard testimony, Dr. Rock, that the next step
in the process, that the ingot is reheated and rolled into
billets at the 32-inch mill. Do you have specific data
indicating the temperature at which that ingot was reheated
when it went through the 32-inch mill?
A I don't have specific data.
Q Are you able to estimate that temperature based on
evidence that is reasonably available to a board certified
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industrial hygienist such as yourself?
A I can.
Q Okay.
A As I appreciate it, it's a hot-rolling mill. And that
means that it's certainly below the melting point of steel.
So it's very likely that they run it up to about a thousand
degrees Celsius in order to make it malleable enough to have
its size shaped by the squeeze rollers in the mill as it goes
back and forth through the rollers.
Q Dr. Rock, did you prepare a graph that might be helpful to
the jury that talks about some of these temperatures?
A I did my best.
Q Is that that graph, sir?
A Yes.
Q And if you could please detail to the jury these
temperatures that you've been referencing at different stages
of the process.
A Well, here for the first time in my presentation, on the
right side I've got temperatures in degrees Celsius and
degrees Fahrenheit. So you can use whichever scale you like.
100 degrees Celsius and 212 Fahrenheit you'll recognize,
perhaps, is the boiling point of water. And I made a note
that those temperatures will burn exposed skin.
Then the temperatures increase. Going down the column, at
around 200 Celsius or 400 Fahrenheit, chrysotile and amosite
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both start to lose water. The water loss continues up to
about 600 for chrysotile and 700 for amosite. The chrysotile
fibers are brittle and they have become thick and solid
instead of like rolled scrolls. The chrysotile converts to
forsterite somewhere around 800 to 850 degrees Celsius which
is about 1800 degrees Fahrenheit. It becomes glasslike at
the temperature of red-hot steel. And that's around
1,000 degrees Celsius or 1,832 degrees Fahrenheit. It
becomes glasslike in the literature in under two hours. And
you can melt steel at 1,400, or pour steel at 1,600 degrees
Celsius. At that temperature range the EPA, in looking at
the in-vitro glassification that my laboratory participated
in, determined that the glass transition occurred in less
than three minutes. Their report actually said two to three
minutes.
Q So, Dr. Rock, I'd like to kind of unpack some of the
things that you've said here. First, I don't see amosite,
the temperature at which amosite would convert to a non-toxic
ash on your chart. Can you please detail that temperature
for the jury?
A Well, the glass transition there at a thousand
degrees C, it's in that vicinity give or take about
50 degrees. And that depends in part on which formation the
amosite came from.
Q Okay. And then we were speaking initially of the
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temperatures that were reached in the 32-inch mill. Where
would that fall on this graph?
A I believe it would be in the chrysotile to forsterite
transition range, or the chrysotile and amosite glass-forming
range, between 800 and a thousand degrees Celsius.
Q Perhaps I asked a bad question, sir. Does your graph
reference, when the steel was reheated, when it was put
through the 32-inch mill to be made into billets, does it
reference a temperature that steel would have reached?
A It would be red hot steel temperature.
Q That's that 1,000 degrees Celsius, 1,832 Fahrenheit?
A Right.
Q Okay. Now, there has not been any testimony in this case,
Dr. Rock, that people saw glass particles after the pouring
of the molten steel. If, according to your analysis that
when it reached these temperatures it should have turned into
a silicate, why wouldn't we see glass?
A At these temperatures when you have 6 percent asbestos,
which I understand was the nominal formulation of the
Ferroboard liner, you've got 94 percent other materials, many
of them organics. And they keep the asbestos fibers apart so
they can't form a pool of glass. They become part of this
ash system.
Q And to the final step in the process, the jury has heard
testimony that Mr. Turner worked in the 22-inch mill doing
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various tasks, but including approximately 30 percent or
40 percent of his time as a scarfer. Do you have an
understanding what scarfing is, Dr. Rock?
A I do.
Q If you could please detail your understanding for the
jury. And if I may, there is a demonstrative to which I do
not believe Mr. Hart has any objection that might be useful.
A Scarfing is done with a long torch, it's an acetylene
torch. The scarfing worker has triggers so that he can add
oxygen or acetylene to his flame. What that means in the
welding or scarfing world means his flame can be reducing or
oxidizing. And in the scarfing torch it can go all the way
to one hundred percent oxygen.
So he uses this torch to heat the face of the billet
before it goes into the 22-inch rolling mill to get flattened
into sheets. And he uses the torch to heat the steel until
it's near the melting point. Then he adds oxygen and burns
some of the steel, makes it even hotter. Steel becomes a
fuel here. And he pushes a sort of a puddle of steel across
the edge, taking the debris with it. Once again, they want a
clean surface going into the mill, they don't want any
inclusions in the steel that would weaken it. So this
scarfing is the last cleaning step before it goes into the
22-inch mill that finished it into it's near final form.
Didn't make I-beams, but it made the right size slab that
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I-beams could be built, or the panels that are used to create
ships could be cut and molded.
Q So you referenced two different aspects, the high-pressure
air hose and that acetylene torch. I'd like to break those
down if I might. So, Ms. Raterman, Dr. Longo and Dr. Brodkin
testified that the use of that acetylene torch did not
increase Mr. Turner's risk of mesothelioma. Do you agree
with that analysis Mr. Rock?
A I do.
Q If you could please tell the jury why.
A There is no asbestos here. This is a long ways away.
It's at least a football field, maybe a quarter mile away
from where the asbestos liner boards were installed. But the
asbestos was destroyed in the use of those liner boards. So
there's just -- there's no asbestos associated with Ferro in
this work zone.
Q And to the extent that there was somehow this dust or
particulate, do you have an opinion as to whether or not that
was a toxic or non-toxic dust?
A With regard to mesothelioma it's not toxic. With regard
to lung cancer, based on what NIOSH found, it may well be.
Q And is it your understanding that Mr. Turner has lung
cancer, sir?
A No, it is not.
Q Now, the jury has also heard testimony that Mr. Turner was
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exposed to an asbestos-containing Ferro product when he used
that high-pressure hose, and dust or particulate or residue
would come into his breathing zone. Do you agree with this
analysis Dr. Rock?
A There is no Ferro product in this part of the steel mill,
so no, I disagree with that.
Q Dr. Longo provided some testimony asbestos fibers may
circulate in the air for some period of time. In your
opinion was Mr. Turner substantially or significantly exposed
to asbestos deriving from any Ferroboard liner that would
have been circulating in the air?
A In my opinion, no.
Q And please state the basis of your opinion, sir.
A The Ferroboard liner, as I understand it, had the
consistency of brick. It was not a dust-producing material
until it was destroyed in pouring of molten steel. And when
it was destroyed, there was no asbestos. So it was not a
source of asbestos that could be recirculated in a steel
mill.
Q I'd like to switch gears a bit, Dr. Rock. In your review
of the facts in this case and the records in this case, did
you have an opportunity to examine any asbestos exposures on
the USS Cunningham?
A I did.
Q And what information did you learn from your review of
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this case?
A Well, I learned that Mr. Turner served as a sonar operator
on a destroyer, the USS Cunningham. I learned that at the
time the USS Cunningham was decommissioned and refitted for
future service, he spent some period of time, perhaps months,
in the mechanical zone while it was in the shipyard.
And that's sort of a normal event for Navy sailors, when a
ship goes into a shipyard for refit there's work that's
specified for the shipyard personnel. And the Navy uses its
own sailors to do as much as it can. And the sailors live
aboard in most cases.
That is an asbestos-dust-intense environment when that's
going on in the shipyard. So he had substantial exposures
from whatever period of time that represents. And the
testimony is ambiguous on that point in duration.
Q There's also testimony this ship was used in the Vietnam
War and that guns were fired. Do you have any opinions, sir,
based on your knowledge and training as an industrial
hygienist about whether or not that would have disrupted any
asbestos fibers that were present on the USS Cunningham?
A Yes. The firing of big guns does cause vibrations, does
cause dusting from the insulation on the ships. I've seen
that testimony in other cases.
Q Do you have an understanding, sir, about any exposures
that Mr. Turner would have had while he was below deck? I
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believe the testimony is that he was a sonar technician and
may have worked above deck. But do you have any opinions
about exposures he might have received below the deck?
A The exposures below deck were sufficient, according to a
paper by Rice and Heinemann published in 2003, that those
sailors are at risk of mesothelioma, not as high as those who
were continuously below deck because they were assigned, for
example, to the fire room or engine room, but still well
above the background spontaneous rate of mesothelioma.
Q Okay. And, again, I'd like to switch gears a bit here,
Dr. Rock. Did you review ON Marine's interrogatory responses
in this case?
A Yes.
Q Were they helpful in forming your opinions?
A They were helpful, yes.
Q Do you have any information whether, based on the
interrogatory responses or otherwise, documents that were
produced therewith again, or otherwise, about any
communications that Ferro would have made to its customers
such as Bethlehem Steel about any asbestos content in its
products?
A There was such correspondence mentioned, I think maybe
attached as an exhibit. There was correspondence with an R&D
group at Bethlehem Steel, I think announcing the availability
or querying about the availability of asbestos-free hot top
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liners.
Q Sir, did you review the formulas in this case, the
exemplar formulas that Ferro -- that ON Marine produced in
this discovery?
A I did.
Q And what, if anything, did they say, to the best of your
understanding?
A It appeared to me that most of the formulas had asbestos
in the neighborhood of 6 percent. And it was a mixture of
chrysotile and amosite, or it was all amosite, for the
formulas that I looked at.
Q Okay. Dr. Rock, in your review in this case did you
receive portions or all of Ferro's supplemental interrogatory
responses, the documents that were part of --
A Yes.
Q And is this letter here a document that you received that
was part of ON Marine's supplemental interrogatory responses?
A I recognize it, yes.
Q And is this a document that you relied upon when
formulating your opinions in this case?
A Yes, it was.
MS. GANT: I would move for admission of this
document under the ancient document exception, Your Honor.
THE COURT: Any objection, counsel?
MR. HART: Just finishing up looking at it, Your
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Honor. I don't think I have an objection. No, sir.
THE COURT: It will be admitted.
(Exhibit No. 3038 was admitted into evidence.)
THE COURT: Do we have a number for that? Is it a
new exhibit?
MS. GANT: It is not a new exhibit, and I apologize.
It is 3038.
THE COURT: That will be admitted.
Q Dr. Rock, there's been testimony in this case where
Ms. Raterman was critical of Ferro for failing to substitute
asbestos-free products before January of 1974. In this
letter -- is this a letter that you reviewed in analyzing
whether ON Marine was attempting to substitute an
asbestos-free product prior to that time?
A Yes, it is.
Q Okay. And what is your understanding about Ferro's
efforts to substitute those products, based on this record,
or otherwise?
A Based on this record Ferro was field testing an
asbestos-free formulation of its hot top liner at the
Lackawanna plant of the Bethlehem Steel Corporation, and this
was apparently an announcement so the purchasing agent could
double check what they had been buying to decide how soon
they want to buy the asbestos-free product.
Q And am I correct that this document is dated May 1st of
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1972, Dr. Rock?
A Yes.
Q And so this indicates, "We currently have field tests
underway with Ferroboard materials completely free of
asbestos. Lackawanna is one of the plants testing these
materials and all reports to date are satisfactory." Did I
read that correctly, Dr. Rock?
A Yes.
Q Are you aware of any information in this case as to why
Bethlehem Steel may not have chosen to purchase asbestos
products prior to that January 1974 timeframe?
A I don't recall any information that would help me answer
that question.
Q And are you aware of other evidence in the record, sir,
about Ferro's interactions specifically with Bethlehem Steel
in attempting to test asbestos-free products prior to Mr.
Turner's employment at Bethlehem Steel in 1973?
A There were a lot of documents in this case. I may be
partially confused. But I think there may have been a letter
around the time of the 1969 patent.
Q Okay. I'm going to switch gears a little bit and I'd like
to speak specifically about caution labels. Now, as part of
your review of the interrogatory responses, which have been
previously admitted in this case, did you review ON Marine's
response to Interrogatory No. 8?
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A Yes, I did.
Q And could you please read the highlighted portions of that
document?
A In 1971 defendant commenced a labeling program using the
following label: "Caution, contains asbestos fibers. Avoid
creating dust. Breathing asbestos dust may cause serious
bodily harm." It is believed that the color of the label was
in red and that the label was approximately two inches by two
inches.
Q Okay. And did you review Exhibit 520, which has also been
admitted in this case, which is a copy of the caution label,
Dr. Rock?
A I did, yes.
Q And did you rely upon this document for purposes of
formulating your opinions in this case?
A Well, I recognized that this was a warning label that they
used. I don't know that it affects my opinions that there
was no asbestos in the steel mill in the places where
Mr. Turner worked that came from the ON Marine or Ferro
Engineering Ferroboard.
Q Dr. Rock, are you familiar with the 1972 OSHA standards
with respect to asbestos?
A I'm familiar with them. There were many pages there.
Q And specifically are you familiar with those portions that
deal with caution labels?
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A Yes.
Q This exhibit is No. 39, it has been previously admitted.
Is this, to the best of your understanding, a copy of the
1972 OSHA standards with respect to caution labels, sir?
A It looks like it.
Q And the highlighted portion, is this what OSHA stated that
a caution label should state?
A It states right there, "The label shall state," then the
highlighted portion, there are the same words that we read
out of a previous exhibit.
Q And Ms. Raterman testified that this caution label
conformed with the 1972 OSHA standards. Do you agree with
Ms. Raterman's opinions on this point?
A I do.
Q Do you have opinions about the sufficiency of this caution
label?
A It was required by OSHA. And at the time when we were
using it in the Air Force, I thought it was sufficient.
Q And what opportunity or what experience did you have when
you were in the Air Force to cause you to come to that
opinion, sir?
A Occasionally a worker who would see one of the caution
labels -- and asbestos was not the only material that earned
a caution label -- would ask in the industrial hygiene
program for more information. And we could give it to them.
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Before we had the caution labels that very seldom happened.
Q But it's your opinion, based on your professional
experience, and your experience as a certified industrial
hygienist, that this is in conformance with the OSHA
standards and is sufficient? Do I understand that correctly?
A Yes.
Q I'd like to speak briefly about Bethlehem Steel. From an
industrial-hygiene perspective, what responsibilities did
Bethlehem Steel have to protect its employees in the 1973 to
1976 timeframe?
A Well, as an employer they were responsible for providing a
safe and healthful workplace under the OSHA act.
Q Now, Ms. Raterman testified that Bethlehem Steel was not
complying with OSHA regulations intended to protect employees
during this relevant timeframe. Do you agree with her
analysis, sir?
A Well, she was a compliance officer. I was not. So I'm
not sure the basis for that opinion that she expressed.
Q What is the basis of your opinion, sir?
MR. HART: The opinion that he doesn't know the basis
of her opinion? That's all I heard.
THE COURT: I think you should rephrase the question.
MS. GANT: I'd be happy to.
Q Dr. Rock, do you have an opinion as to whether or not
Bethlehem Steel was in compliance with OSHA regulations
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pertaining to the protection of its employees in the 1973 to
'76 timeframe?
A I would say that they were working at it. I don't know
that any large corporation with as many manufacturing sites
as Bethlehem Steel had in those days, was ever fully in
compliance. So it would be hard to say that they were fully
in compliance, particularly when I didn't visit their plants
in those days.
Q Okay. And have you seen testimony from Mr. Turner or
other coworkers that informs that analysis, sir?
A Well, they did mention that they did not always have
respirators. So it sounds like the respiratory protection
program, at least in the minds of the people working there,
was not what they would have desired. And as I've already
expressed, if there's dust around I would prefer to have
respirators. I'd actually prefer to have local exhaust
ventilation that captures the dust before it gets to the work
zone.
Q And speaking of dust, did you see any reference that
informed your opinion about whether or not Bethlehem Steel
was a dusty place during this timeframe?
A There was some testimony, but since I have visited steel
mills when I was in junior high or early in high school, I
already knew they were dusty without having to see that
testimony.
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Q I see. And do you have an understanding that Bethlehem
Steel, the Seattle mill specifically, was dusty, sir?
A I don't have specific information about the Seattle mill.
I'm sorry.
THE COURT: Are you just about done?
MS. GANT: I have two questions, Your Honor.
THE COURT: We'll count them.
Q Dr. Rock, have we agreed to compensate you for your time
today?
A We have.
Q And we paid for your flight from Texas and covered a hotel
room and things of that nature?
A You've promised to reimburse, yes.
MS. GANT: Thank you. That's all the questions I
have at this time.
THE COURT: We'll take our afternoon recess and be in
recess for approximately 15 minutes.
(The proceedings recessed.)
(The following occurred in the presence of the jury.)
THE COURT: As I understand it, Lone Star is not
going to cross the witness or ask any questions?
MR. AMEELE: That's correct.
THE COURT: I don't know if it would be cross, but go
ahead, counsel.
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CROSS EXAMINATION
BY MR. HART:
Q Good afternoon, sir.
A Good afternoon.
Q Dr. Rock, I'm Tom Hart, I represent the Jim Turner family.
You don't know me, do you?
A We have not met, that I recall.
Q And you don't know Jim Turner either, do you, sir?
A I have not met him, that's correct.
Q And you've not spoken to him on the telephone, have you,
sir?
A I have not.
Q You've not had an opportunity to speak with any of his
coworkers, is that correct, sir?
A I have not.
Q You've not had an opportunity or not taken an opportunity
to go out to what was formerly the Bethlehem Steel mill, and
visit it, have you, sir?
A I have not visited the former Bethlehem Steel mill
correct.
Q In fact, you've never visited any steel mill since your
junior high school days; is that correct?
A That's correct.
Q And so the jury understands your background a little bit,
you're testifying on behalf of -- you were retained in this
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case to testify about Mr. Turner's exposure through his
father and the exposures at Bethlehem Steel and the Navy
exposures; is that correct?
A To look at the risk factors in the evidence for
mesothelioma. So, yes.
Q Okay. And just to deal with this quickly, whatever
exposure he had from joint cements, in your opinion, did not
cause his mesothelioma; is that correct?
A That's correct. There is no epidemiology showing that
career drywall finishers are at risk of mesothelioma and a
short-term user is at lower risk.
Q And you don't think that any exposures he had through his
father's clothing when the father took it home played any
role in his development of mesothelioma; is that correct,
sir?
A That's correct.
Q So if Mr. Turner developed mesothelioma, in your opinion
it occurred sometime from when Mr. Turner moved out of the
home but before he worked with joint cements, because that
was the last time he was potentially exposed to asbestos;
correct?
A That's what the record shows. And my opinion is if it's
asbestos-related mesothelioma then, yes, it would have been
after he left home. And the Navy is the most likely place.
Q So between 1969 when he left home and 1976 when he went to
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work doing joint-cement work is the time that the asbestos
exposure occurred that caused him to develop mesothelioma;
correct?
A Well, I don't have a medical causation opinion.
Q You're right. Let's back up. You're not a medical
doctor?
A You are correct.
Q You're a Ph.D. doctor?
A That's correct.
Q Nothing wrong with that. We don't hold that against you.
Okay. We've had other Ph.Ds come in here. But you're right,
you can't talk about what caused his cancer; you can only
talk about what exposures placed him at risk for the cancer;
is that correct?
A That's correct.
Q And it's your opinion that the exposure that placed him at
risk of mesothelioma occurred sometime between 1969 and 1976;
is that correct?
A If it's an asbestos-related mesothelioma, yes.
Q And you're not a doctor so you can't say it's not an
asbestos-related mesothelioma, if all the other doctors who
have examined him say so, correct?
A I will not have an opinion on clinical findings, you are
correct.
Q So if doctors have come before and raised their hand
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before the jury and told them this is an asbestos-related
mesothelioma, you're not here to contradict that, correct,
sir?
A That's correct.
Q So between those seven-year time periods Jim Turner was
exposed to asbestos that caused his mesothelioma, correct?
A May have increased his risk of mesothelioma.
Q Increased his risk. Thank you.
Now, you're not a toxicologist, correct, sir?
A I am not a certified toxicologist, although I taught it to
students at A & M.
Q You're not an epidemiologist?
A I am not an epidemiologist, although I coordinated epi
studies with the Air Force epi lab.
Q You testified you never took an epidemiological course?
A That's correct.
Q You never studied epidemiology in a classroom setting; is
that fair?
A That's correct.
Q And you also testified that you have never done an
epidemiological study?
A I've not done one myself, that is correct.
Q And let's talk about asbestos. You talked about some
publications. Have you ever written any of your articles
dealing with asbestos?
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A Articles that I've written affect how you calculate risk
for any chemical. But I have not written an article specific
to asbestos.
Q In fact, if we went and looked at all of your articles,
had them scanned and OCRd and did a word search, in all the
articles you've written in peer-reviewed journals the word
asbestos doesn't even occur, is that fair?
A I believe that's fair, yes.
Q Now, somehow in -- when was it -- 2004, then a Dr. Dyson
told you about the opportunity to testify for defendants in
asbestos litigation; isn't that correct?
MS. GANT: Object to form. Argumentative.
THE COURT: Overruled. You may answer.
A Dr. Dyson did have a conversation with me about bringing
science to the courtroom, an expert witness, and what it
means, yes.
Q Let's talk about what science Dr. Dyson brought to the
courtroom. You knew he testified for defendants in asbestos
lawsuits, companies who made asbestos products on a regular
basis, did you not, sir?
A He explained that to me, yes.
Q He told you there's an opportunity for you, if you wanted
to, to come testify for the companies that were being sued
for asbestos, is that correct, sir?
A What he said is he thought I would be a credible witness.
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He didn't say that it would be for companies or it would be
for plaintiffs.
Q But the contacts he gave you were for the companies,
correct, sir, the companies' lawyers?
A The contacts he gave me, yes, sir.
Q You followed up on those contacts, did you not?
A I did.
Q And you sought out the company lawyers and offered your
services available?
A I never sought a lawyer, no, sir.
Q Well, you contacted whoever Dr. Dyson told you?
A I did not.
Q You just told the jury you contacted them.
A I didn't say that, I think you said it. What happened was
Dr. Dyson referred some of his clients to us.
Q Okay. Dr. Dyson said: Would it be all right if I had
them contact you, and you said sure?
A Yes.
Q Okay.
A Now, let's clear the record --
THE COURT: You've answered the question.
Q And so Dr. Dyson, being your intermediary, told whoever,
and somebody called you and said, would you like to testify
for the defendants, correct?
A That's correct.
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Q Now, you gave us a list in this case for the last four
years, and since the beginning of 2009 you've testified 110
times, all of those at the request of a company being sued in
an asbestos case; is that correct, sir?
A That's not correct.
Q All the asbestos testimony you've done have been for
defendants who have been sued by someone claiming an asbestos
disease, is that correct, sir?
A And they've all been in low-dose cases, yes, sir.
Q And we're going to get to that in a minute.
Before 2009 and going back to 2004 when Dr. Dyson made
the contacts for you, you also testified over a hundred times
during that time period, is that correct, sir?
A I believe that to be correct.
Q And, in fact, all of the testimony you gave on asbestos
cases was always for one company or another that had been
sued in a case like this; correct, sir, in the asbestos
litigation?
A Well, there was one case where a company was sued by
another company. So there wasn't an individual plaintiff.
But other than that, yes.
Q Okay. But you always testified for the defendant even in
the company-versus-company suit?
A No, that was -- I was on the plaintiff's side on that one.
Q So one asbestos company was suing another and you went
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with the plaintiff on that one?
A They contacted first. Yes, sir.
Q In all the asbestos cases you've always been on the side
of the asbestos company one way or another, correct?
A If by "asbestos company" you include users of asbestos,
like joint-compound companies.
Q Companies that sold products containing asbestos.
A Right.
Q Okay. And you're always asked, as you were in this case,
to evaluate your client's exposure and offer your opinions
concerning whether that exposure caused the -- or placed the
plaintiff at an increased risk of cancer; is that correct,
sir?
A Or asbestosis.
Q The majority of your cases, and there have been over 200
of them, have been victims of mesothelioma; is that fair?
A There's a growing proportion of lung cancer. But the
majority, yes, mesothelioma when asbestos is the stressor of
interest.
Q And as a scientist you know that mesothelioma is uniformly
fatal, correct?
A Yes.
Q And in those cases you know you're testifying in a case
where a person is dying or he's already passed away and his
family has brought the suit; correct, sir?
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A Well, somebody has been diagnosed with mesothelioma. I
don't know that the families always bring the suit, but other
than that I have no objection.
Q Either the person is dying or already passed away, is that
fair?
A Yes.
Q Now, in all of those cases when it's brought by either the
individual themselves or his representative after he passes
away, your testimony in every single case has been that the
asbestos company that hired you did not place that person at
an increased risk of mesothelioma; isn't that correct, sir?
A Actually I don't think I've ever testified to that. I've
always testified that, using Peto's model, you can estimate
the amount of increase, and that in many, many cases the
amount of increase is lower than the increase just
experienced by citizens of the urban areas of the United
States in the middle 20th century, an increase that was
reported repeatedly in the epidemiological literature to be
not potent for mesothelioma.
So, I have said this is the calculated increase, this is
what the model says at very low doses. But it's not
significant.
Q Well, we're going to get to your model in a minute. That
model, the calculation you use is one that you developed,
correct?
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A No, it was developed by Julian Peto.
Q But the formula you used in this case you showed us was a
mathematical model you adapted, correct, sir?
A I mechanized it.
Q Mechanized it. We'll use your word, I don't mind. It
means you changed it?
A Absolutely not.
Q You adapted it for this circumstance?
A That means I shortened the time necessary to make the
calculation. I put it on the computer along with almost
everything else today.
Q And your method of mechanizing this formula, you've never
published that in a peer-reviewed journal, have you, sir?
A It's not been published in a peer-reviewed journal, you're
right, by me. It's been published by the people that
developed the formula.
Q Not the mechanized version?
A I don't see a difference between the mechanized version
and the algebraic version.
Q But regardless, your formula that you apply in this case
has, in every instance you've been hired by an asbestos
company against somebody with mesothelioma, you've always
concluded, using your formula, that the company that hired
you did not place the person at an increased risk of cancer;
is that fair, sir?
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A That's not fair.
Q Why is that not fair?
A I concluded in most cases it did not cause a significant
increase.
Q Okay.
A But occasionally, as in the Reeve case recently in this
Seattle area, the person that hired me, the company that
hired me, did pose a significant risk of mesothelioma. And I
was deposed in that case.
Q Okay. One time, the model has come out showing an
increased risk for the plaintiff?
A There were other times when I was not engaged as a
testifying expert, and it doesn't show therefore on my list
of testimony.
Q Well, all I know is what you gave us and this is where
you've testified, correct?
A Right.
Q Every time you testified, except that one time?
A Right.
Q I didn't know about it, the other 200 times you've always
testified that the companies did not place the plaintiff at
an increased risk; is that correct?
A That's right. I've been given low-dose cases to look at.
I suspect that they're prescreened.
Q And if your model ever is different than that, you usually
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don't get called into court?
A Well, that one time I did not get called into court;
that's correct.
Q Now, you've never tested -- you're an industrial
hygienist, correct?
A That's correct.
Q Industrial hygienists can go out and do tests on the
worksite, correct?
A Yes.
Q They can measure potential hazards like the release of
asbestos fibers, correct?
A Yes.
Q You've never tested an asbestos fiber for fiber release;
isn't that correct, sir?
A In any of the cases I've been retained, that is correct.
Q You began testifying so much and having so much work
coming through this venture that Dr. Dyson turned you on to,
that you formed a corporation. You mentioned a little
company called TUPE?
A Yes.
Q It's really a tiny corporation, it's you and your wife,
right?
A That's correct.
Q Your wife is the president?
A That's correct.
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Q And is she an industrial hygienist?
A No.
Q Is she a scientist?
A She's got a bachelor's degree in pre-medicine so she's
scientifically trained.
Q Does she do any industrial hygiene work?
A No.
Q So this is just a private company for you and your wife?
A Yes.
Q Half of the money or more that your company earns comes
from testifying on behalf of companies like you've done
today; isn't that correct?
A Yes. That's correct.
Q And in the last year tell the jury how much you've earned,
or the last two years, or whatever amount you're comfortable
with.
A I got a salary of $115,000 last year and I think it was
$110,000 the year before.
Q And how much does TUPE bill on your behalf?
A That, I don't know.
Q Considerably more?
A Yes. My wife gets a salary, and there's a retirement
account too.
Q Your wife's salary comes from the income you generate; is
that fair?
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A Well, somebody has to do the business of any company.
Q Yes, sir, I'm not criticizing the fact that she works with
you. I'm just saying the income that your company makes
comes from your testifying in cases like this?
A Yeah. Our product is consulting, and most of that is
testifying; that's correct.
Q And all of the consulting is done by you?
A Yes.
Q Your wife doesn't go out and do consulting work?
A No.
Q She's doing the books back home?
A That's correct.
Q Apparently she doesn't share with you the income the
company is making, what the books show?
A She does not. That's between her and the bookkeeping
service.
Q Okay. Okay. Dr. Castleman testified this morning and you
sat in during his testimony?
A I did, yes.
Q Is that the first time you've seen his testimony?
A The first time I've seen Dr. Castleman in person. Yes,
sir.
Q You saw him describe the textbook, he's published five
editions of it?
A Yes.
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Q You went out and bought a copy of that?
A I think I have the fourth edition.
Q So the fourth edition came out ten years ago, you've had
it that long?
A No. I bought it used off Ebay.
Q That's fine. But you bought that not long after you got
involved in testifying in these asbestos cases; is that fair?
A Probably '08 or '09.
Q Now, going back to the steel mill, not only have you not
visited the steel mill in a professional capacity, you've
never done any studies of hot tops before this case, have
you?
A You are correct.
Q And you told us when we took your deposition, that you
weren't even aware of any epidemiological study addressing
steel mill workers; isn't that correct?
A That is correct. No large epi study as of Monday of this
week could I find in the National Library of Medicine.
Q The NIOSH study you mentioned to the jury, you didn't
discuss that with us in the deposition, did you, sir?
A That's not a mesothelioma study. I understood the
question to be about mesothelioma epidemiology.
Q But that is an epidemiological study?
A Yes, it is.
Q And in this case you indicated when we asked you -- we
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asked you about amosite, did we not?
A I believe you did, yes.
Q And we asked you about the hot top material Ferro made.
And at the time of your deposition -- and your deposition was
in September, correct?
A As I recall, yes.
Q You gave us a list of the things the lawyers sent you that
you reviewed?
A Yes.
Q And at that deposition when we asked you questions: And
here's the things you reviewed, the document list --
MS. GANT: Excuse me, are you going to use this for
demonstrative purposes, Mr. Hart?
MR. HART: Yes.
Q This is what you gave us, right?
A Yes. It looks like it.
Q And you got the plaintiff's answers to interrogatories,
plaintiff's amended answers to defense style interrogatories,
depositions. Do you see that?
A I do.
Q And you didn't know, after reviewing all of that material,
that Ferroboard contained asbestos, did you, sir?
A I didn't know the formulation; that's correct.
Q So the testimony you gave today about the formulas and
about the fact it contained asbestos is something you learned
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after we took the deposition of you, is that fair?
A That's fair.
Q And you didn't bother to tell us that you were going to do
that additional research, at the time of your deposition you
didn't tell us that, did you?
A At the time of my deposition I had no plans to do
additional work on this case.
Q Okay. You were asked about Exhibit 3038. That was a
letter to Bethlehem Steel. And you were asked what you
understood about Bethlehem Steel and what you understood
about Ferro. Do you remember those questions about that
exhibit?
A The questions this afternoon?
Q Yes, sir.
A Yes, I do.
Q And that document, you said, came from the supplemental
answers to interrogatories filed by Ferro. Do you recall
that, sir?
A I can't keep track of all the documents in this case, but
I thought that's where it came from.
Q Okay. And you did not have that document at your
deposition, did you, sir?
A I did not, you're correct.
Q It's not on your disclosure list you gave us, correct,
sir?
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A Not as a separate itemized document, no, sir.
Q You hadn't even looked at it at the time of the
deposition, isn't that true, sir?
A I had looked at it but I didn't recall it at the time of
the deposition.
Q Would it surprise you to learn, sir, that according to the
official court file in this United States District Court that
the supplemental answers to interrogatories were not filed in
court until October 15th, some month after your deposition?
A Well, then that's why I didn't have knowledge of it at the
depo.
Q So you did not have it and you had not reviewed it at the
time of the deposition, correct?
A I had no recollection of it at the time of the deposition,
that's correct.
Q And had you looked at it, whether you recalled it or not
at that time, just tell me yes or no.
A I don't know.
Q Okay.
A But if the court records show that it wasn't released
until the middle of October, then the answer is no, I had
not.
Q Okay. So let's find out what else you've done since your
deposition. In fact, when did you first look at that
document, was it since you got here?
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A No, it was -- I remember looking at it last week.
Q Last week. Okay. Did you get a lot of documents last
week?
A I got a lot of documents late in October and a lot more
last week and even into Wednesday of this week.
Q Okay. So let's talk about that. So Friday the day after
Thanksgiving you started reviewing new documents; is that
correct?
A New to me, yes.
Q Yes, sir. Yes, sir. And those included -- we talked
about some, and what else did they include?
A I can't tell you which documents are in which pile as I
sit here.
Q Okay. How big of a pile was it?
A It's electronic. I don't know, 35 megabytes about.
Q 35 megabytes?
A In each of those two document dumps. But they didn't come
all at once, they came two-sies and three-sies.
Q You got one document dump on Friday and one Wednesday of
this week, is that fair?
A No. It came last Friday through Wednesday, two or three
documents at a time.
Q Is the total 35 megabytes?
A No. I'd say it's about 35 megabytes, give or take, in
October and in November.
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Q Well, how much did you get this month?
A In December?
Q Well, since last Friday.
A Oh, I don't know, 3 or 4 megabytes maybe.
Q And those documents all allowed you to testify about your
opinions, or at least they contributed to your opinions on
what would happen to amosite in the Ferroboard liner; is that
correct?
A Virtually none of those documents -- well, Dr. Mishra's
report, yes.
Q All right. And so any opinions you have about Ferroboard
liner and the heat of a Ferroboard liner is something you
learned just recently; is that correct?
A The heat of the Ferroboard liner? Yes. Dr. Mishra's
report and his study is very thorough on that question.
MR. HART: Your Honor, at this time we would move to
strike all previous testimony by the doctor concerning
temperatures reached by Ferroboard liner as being incurred
after the fact.
MS. GANT: We renew our statement that we disclosed
the Mishra report. And consistent with the timing
requirements of this court, that Dr. Rock was deposed prior
to that time. And we have certainly put all parties on
notice of the fact that Dr. Rock was relying upon that
information when forming the basis of his opinion.
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THE COURT: I'm going to defer ruling. Go ahead and
finish your cross.
Q Let's find out what you knew before you got the document
dump. What you thought you knew is that the steel at the
Bethlehem Steel shipyard was heated as high as 7,000 degrees?
A Yes.
Q And you testified to that in your deposition. You thought
steel got to 7,000 degrees at Bethlehem Steel?
A During scarfing, yes.
Q And that's not true, is it, from what you've learned. You
are wrong?
A No. That's the flame temperature of the impinging flame
from the scarfing torch. I don't believe I was wrong.
Q The steel doesn't reach that temperature, does it, sir?
A The surface of the steel does, the part that touches the
flame.
Q We'll ask Dr. Mishra and see what he says about that.
A All right.
Q At the time we took your deposition you could not recall a
single study of amosite that described what happens to
amosite when it's heated. Isn't that correct, sir?
A I believe what I told you is I couldn't recall who the
authors or title was, yes, that's correct.
Q But you had prepared to testify about the Ferroboard
product that contained amosite, didn't you? Oh, you didn't
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know it had amosite, did you?
MS. GANT: Objection, argumentative.
A I didn't prepare to testify on the physical chemistry of
thermolysis of amosite and chrysotile.
Q You mean you didn't prepare for the depositions giving the
opinions that you're giving to the jury today?
A I didn't understand that was the nature of the deposition
at the time.
Q So when you were hired, you thought you were hired to do
something completely different than what you told the jury
today; is that fair?
A I told the jury today I didn't see a risk of mesothelioma
from a Ferroboard product that has the consistency of a brick
and gets burned up in its first use. The details of the
facts about how amosite and chrysotile get burned up, I
didn't expect to be asked.
Q Okay. But the only knowledge you had about amosite was
based upon studies of brake lining dust?
A No.
Q That's the only article you told us in the deposition was
Dr. Lynch's article?
A That's the only one I could recall at the time.
Q That was a study of chrysotile?
A It was, indeed.
Q And Dr. Lynch's article was 1968, correct?
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A It is.
Q That wasn't a health assessment in a workplace study, that
was a pollution study, correct?
A Not as I understood it. I mean, he simulated braking, he
collected the dust and looked at the content of the dust.
I'd characterize it as a bulk analysis of brake dust.
Q Wasn't he looking at determining whether or not asbestos
was a pollution hazard? You don't recall that as being the
subject of the study?
A The comment was made that it didn't look like it was an
air pollution hazard near roadways.
Q Okay. So they're looking at a pollution hazard, they
weren't looking at whether individuals working were at risk
of developing disease in a workplace setting, correct?
A Dr. Lynch is a certified industrial hygienist, was also a
past president of AIHA, as I am. He would not have
overlooked an occupational illness if evidence were present.
Q I'm sure he wouldn't. But the purpose of that study, like
I tried to ask you, sir, was not to study a workplace setting
but to study pollution from brake linings that are out on the
street?
A You're making a distinction that I don't make. And I
didn't understand in the '70s, when the Air Force hired me
and converted me to an industrial hygienist, our role was to
protect the workers, the workforce from the stressors of the
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workplace, and make sure that the stressors of the workplace
didn't get dumped into the community to cause community
public health problems. We didn't distinguish where the shop
wall is. And in 1968 I don't believe Dr. Lynch did either.
Q Okay. And in the conclusion section Dr. Lynch stated --
and you've read this article, right --
A Yes, I have.
Q His final sentence, "Many sources of respirable fibers not
associated with asbestos products have been identified, and
free fibers from brake lining wear seem to be an
inconsequential health factor in urban air pollution."
A I don't disagree that he wrote that.
Q And then the table just above that he listed the test
results he performed on the brake dust by electron
micrograph. Do you recall that table?
A Yes.
Q And sample No. 4, automobile drum brakes test method.
"Friction between 700 and 900 degrees Fahrenheit. There were
numerous free fibers and approximately 10 percent free
asbestos fiber," he reported in sample No. 4, do you recall
that?
A In sample No. 4, yes.
Q And in sample No. 9. Automobile drum brakes. The test
method was friction, the conditions of the test were 600 to
700 degrees Fahrenheit. Numerous pre-fibers were determined,
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and approximately 15 percent pre-asbestos fibers were
determined; is that correct?
A Yes.
Q And he found some others with lower amounts and some with
no asbestos fibers, correct?
A Correct.
Q That's the basis you have to discuss the amosite
degradation in this case. That was the only paper you could
recall when we took your deposition. Correct, sir?
A It's the only paper I could recall. But I did recall that
amosite decomposes. And I remember from the studies that the
Air Force had done when I was a commander of the lab, that it
decomposed. There was no peer-reviewed publication out of
that that I could cite.
Q Right. Now, Dr. Longo said he did an EPA -- he was hired
by the EPA to study this idea of melting asbestos to turn it
into that glass rock you talked about?
A Yes.
Q And he said the EPA wouldn't accept that method using a
furnace.
A Well, in 1992 the EPA published a tech report that shows
how that method was very functional but was not economically
-- well, it wasn't affordable.
Q Not affordable. And the EPA never has accepted melting
asbestos as a method to use on a job site to get rid of the
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toxicity of asbestos, correct? The EPA has never accepted
that method?
A I'm having trouble with the hypothetical in that question.
What I imagine is a job site with asbestos fibers in the air.
And if I'm going to provide protection from the asbestos
fibers in the air, I have to heat it up to 1,100
centigrade --
Q No, sir, that's not what I'm asking you. The EPA never
has approved a method of taking asbestos waste and melting it
as a method of removing asbestos from a job site. It always
has to go to a special landfill designated for products like
asbestos; isn't that correct?
A That's the policy.
Q Now, you talked about toxicity and whether or not the
exposures were toxic or potentially toxic. Let me ask you
about this. It's your opinion that when Ferro put amosite in
their product, they were putting a product that, in your
opinion, is between 100 to a thousand times more potent in
causing mesothelioma than the chrysotile product; is that
correct?
A That's my scientific opinion today. That was not the
opinion in '69 when they developed the amosite formulation.
Q We're not talking '69, we're talking today, Dr. Rock, your
opinion.
A Today is not when these exposures occurred. And I just
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said my opinion today.
Q Please stick with my question, we'll try to get you out of
here by the evening. I know you have a trip out of the
country you're trying to take next week. We're trying to
accommodate you.
A Thank you.
Q So, it's your opinion that when evaluating a person's risk
-- and I've got one of these papers for all the witnesses,
I'm going to put your name down here -- that for the potency
of asbestos for mesothelioma, and for the purpose of my
question assume that we're talking about an equal dose for
each fiber, okay?
A Then it will have to be fibers of the same dimension as
well.
Q That's perfectly acceptable.
A Okay.
Q For chrysotile, if we give chrysotile a risk factor of
one, it's your opinion that the amosite fibers would have a
risk factor between 700 to 1,000 times, correct?
A That's the number for crocidolite. For amosite it's more
like two to 500 times.
Q Okay. In light of your testimony, when you're talking
about insulation exposures or shipyard exposures you use the
generic term amphibole, do you not?
A Berman and Crump --
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Q I'm asking you, if you use that term.
A Based on Berman and Crump's 2008 --
Q I didn't ask for your foundation. I'm asking you a simple
question to get you out of here by 4 o'clock.
A The simple answer is, if I'm dealing with amosite it's
usually not above 200 as a factor.
Q We'll cross this out. So it's 200 times more potent?
A Up to, yes.
Q And you indicated you reviewed the patent that -- which is
Exhibit 502 that's in evidence in this case?
A Yes. I haven't memorized it, but I did look at it.
Q We'll help you with that. We won't ask you to quote it.
The patent by 19 -- filed in 1967, correct? And then it was
-- we've got some 1969 here. So looks like they worked on it
for a couple over years, is that fair?
A That's normal for a patent, yes.
Q And they're already in the hot top business by this time.
They already had asbestos-containing hot tops. They were
coming out with a new and improved one, is that fair?
A That's often what a patent is, yes.
Q And their new and improved patent talked about using the
asbestos form -- and I'll zoom it in so we can all see it.
Can you read that, sir?
A I can, yes.
Q Okay. The asbestos form material utilized -- so they're
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talking about what they're proposing in the patent in this;
is that correct?
A Yes.
Q Okay. Has a combined water content of less than
6 percent. Crocidolite asbestos and anthrophyllite
asbestos -- that's a different kind, right?
A Yes, it is.
Q Tremolite asbestos, that's another amphibole, correct?
A Yes.
Q Or amosite asbestos, may be used. All of which have a
combined water content of less than 6 percent.
Now, when we're talking about what happens to asbestos
when you heat it is the dehydroxylation. That's the term, is
that correct?
A That's a chemical term, yes.
Q What that means is the water molecules are removed from
the asbestos by the heat?
A Right.
Q So the more water in the product, in the asbestos, the
more it's going to change, the more that's going to be taken
out?
A That makes sense, yes.
Q So they were looking for a product that had low water
content so it wouldn't be affected by heat as much; is that
fair?
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A They're looking for a low water content, yes.
Q And these materials also have a low loss of weight on
ignition; do you see that?
A They do.
Q On the above-noted materials, amosite asbestos is
preferably used due to its fiber strength and availability.
Do you see that?
A I do.
Q Amosite asbestos contains a small amount of water,
approximately under 6 percent by weight, and has an extremely
low loss of weight on ignition as compared with other
asbestos having a high-water content and a higher loss on
ignition. Is that correct?
A Yes.
Q Interpreting that it means it's affected by heat less; is
that fair?
A Well, it means it releases less water.
Q Okay.
A And the water would cool the iron they're trying to keep
liquid. So it would like less of that.
Q But actually, if you read the patent they're not talking
about that at all, they're talking about the water boiling
and becoming a gas and disrupting the steel-making process,
the gases there. And this would produce less gas, that's
what's stated actually as well in the patent; isn't that
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right sir?
A You boil water and heat it, you take heat from some
source, and the source is the steel they're trying to keep
liquid, yes. And all of that happens too.
Q The purpose they were talking about, they didn't want the
boiling water gases getting in the steel?
A I understand. I understand what they put in the patent,
and I'm giving you another engineering insight.
Q Now, the Ferroboard was a lining?
A Yes.
Q You said it a was a single-use lining?
A Yes.
Q So it was always taken off after every ingot was made?
A There was no board to take off, according to the testimony
that I reviewed. It was ash at the end of the cycle.
Q And you understand it became completely ash?
A Yes.
Q You didn't see the testimony that Mr. Turner described
that somebody over in the melt shop had to take the boards
off --
A I thought --
Q -- before it left the melt shop. Then when it reached him
he thought some of the particulate matter from those boards
remained. Do you recall reading that?
A I recall that he said he thought some of the particulate
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matter from the boards remained.
Q Okay.
A But he never worked in the melt shop. So he didn't have
hands-on experience with what was going on over there.
Q We all agree to that, sir. We're not talking about that.
We're talking about his testimony. Do you recall he said he
would go over to the melt shop from time to time?
A To that vicinity, yes.
Q He'd actually go in the melt shop and look around, and he
was curious. Do you recall that testimony?
A I do now, yes.
Q On those occasions he would observe the process of the
Ferroboard liner being put on and taken off. And he
described it to the attorneys at his deposition; do you
recall that, sir?
A Yes.
Q And he described that after the ingot came out of the
mill, the furnace, it had to be -- the liners had to be taken
off, but he did not do that, other people did it?
MS. GANT: Objection. This misstates Mr. Turner's
testimony.
THE COURT: If you want to address an objection,
address it to me.
MS. GANT: Objection. To the extent this
mischaracterizes Mr. Turner's testimony, Your Honor.
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THE COURT: That will be for the jury. I'll overrule
the objection.
MR. HART: And the witness's answer was yes, he
agrees with me.
Q So, some liner was removed according to Mr. Turner. And
you know that the liner itself is for insulation purposes,
correct?
A That is correct.
Q To keep heat in?
A Yes. Dr. Longo and I agree.
Q And the liner portion of the liner closer to the steel
would get hotter than the portion of the liner away from the
steel, correct?
A I agree with that as well.
Q And the temperature of the liner away from the steel, for
your theory to be correct, would have to get over
900 degrees, correct?
A On the Celsius scale, yes. I understand that it did.
Q You understand that it did?
A Yes.
Q If the jury learns that the temperature on the outside of
the lining did not reach 900 degrees, only reached
750 degrees, then your theory would not be applicable,
correct?
A It would not be totally detoxified. But it would be much
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less toxic than if it had never been heated.
Q And you know, from your industrial hygiene experience, or
whatever you've done since our deposition, that at
750 degrees if you look at amosite by x-ray diffraction,
49 percent of it remains. Isn't that correct, sir?
THE WITNESS: Your Honor, that's a paper I was asked
not to comment on earlier.
THE COURT: He asked a question, I guess he wants an
answer.
Q You know that fact is true, do you not, sir?
A The paper --
Q First of all, answer my question. I didn't ask about a
paper. Just in general. If you heat amosite to 750 degrees,
50 percent of it, almost, remains, when you look at it by
x-ray diffraction analysis?
MS. GANT: Objection. This is incomplete. There's
no information about the timing of how long it was heated to
750 degrees Celsius.
THE COURT: This is proper cross. You may answer.
Q Is what I stated correct?
A X-ray diffraction --
Q Is what I stated correct, first of all?
A No.
Q X-ray diffraction analysis will show that what is reported
as amosite represents 50 percent of the material remaining;
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is that correct?
A X-ray diffraction will show the energy scattered at an
angle that is characteristic of amosite is reduced by half.
Q Reduced by half?
A That can't be interpreted as either fiber or as the amount
of mineral remaining.
Q Well, when you got that document dump, did they send you a
transcript of Dr. Longo's testimony before this jury in this
case?
A His testimony before the jury?
Q Yes, sir.
A I believe I got that last night.
Q Okay. Okay. So then that's something else you got. So
then you know that Dr. Longo said that 50 percent or 49
percent of the material was amosite that remained. That was
his opinion.
A That was his opinion. That's correct.
Q He's a Ph.D., like you, but he's in materials science, he
studies materials and that's his speciality, correct?
A That's correct.
Q You know that he has had a practice and been retained by
the EPA and OSHA and others to analyze and study asbestos
particularly, correct?
A He has, indeed.
Q Okay.
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A But he never said that that was amosite fiber. He did say
it was powder x-ray diffraction.
Q Because they ground it up to look at it under there,
that's why it was a powder?
A That's right.
THE COURT: Now you're arguing with the witness.
MR. HART: All right.
THE COURT: Just ask another question.
A And since he wasn't --
THE COURT: Just a moment. There's no question in
front of you.
MR. HART: I wasn't upset, I was just excited, Your
Honor.
Q It's your opinion that the risk of disease is higher with
exposure to amphiboles like amosite than it is with exposures
to chrysotile; correct?
A Given similar fiber dimensions, yes.
Q And if one gram of the Ferroboard liner survived the
process where it was scraped before it was scarfed, would you
agree with Dr. Longo's calculations on how many amosite
fibers that would represent?
A There has to be a hypothetical middle step. The fibers
that survive then have to be aerosolized and made airborne.
Q Right.
A And in another paper that I'm not allowed to talk about --
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Q So let's don't go there, I'm just talking about
mathematics.
A It was not possible to make those fibers airborne, so --
Q Well, in fairness to Dr. Longo, he just told me how many
fibers, and then I asked him, if you did get it airborne,
what volume would you need to spread it out to 0.1 fibers per
cc. Did you see that?
A I did. And I did the calculation over and got the same
answer Dr. Longo got.
Q 60 football fields -- actually we did 100 meters by
50 meters and then ten feet high or three meters high; is
that correct?
A Correct. And those are my numbers too.
Q Okay. And you agree with Dr. Longo's mathematics?
A On that question, yes.
Q And if two grams survived it would be double that, and if
three grams survived it would be triple that?
A Yes.
Q You heard the testimony that hundreds of ingots were going
through there a day?
A Yes.
Q Okay. And that if each of them had only a gram of
material surviving then that would be multiplied by hundreds
of times, correct?
A If it were released into the air as toxic amosite, yes.
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Q Now, your opinions about his exposures in the Navy, you're
aware that the Navy has tried to study the hazards of
asbestos; is that correct?
A I'm aware of that, yes.
Q And, in fact, you're aware that the Navy actually did
tests, studied the hazards of asbestos in shipyards, correct?
A Yes.
Q So the Navy at least has attempted, has tried to first of
all do research, and second of all do tests for its sailors,
correct?
A Well, shipyard workers and sailors, yes.
Q And when you were in the Air Force, the military did
actually warn military personnel about the hazards of
asbestos, correct?
A The labels were on products we purchased through GSA, yes.
Q So when you bought a product, an asbestos product through
GSA, it came to you with a warning label on it; is that
correct?
A In the '70s and later, yes.
Q Okay. And so the military, the Navy or Air Force,
whatever, researched, tested and actually made sure the
products were labeled when they contained asbestos; is that
fair?
A Like all big organizations there were holes in it. But,
yes, that was the policy, and that was our goal, and we
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worked at it.
Q And the government, the Navy, the military, tried to
protect the workers?
A In the '70s, from asbestos, yes.
Q And even earlier when they did the tests -- you're aware
of the tests done in the 1940s concerning --
A The Fleischer Drinker report, 1946.
Q Yes, sir.
A Yes, I'm aware of that.
Q And the conclusions -- and that was a good paper to do, it
was good that they did that research, correct?
A Yes, it was.
Q And they said, the character of asbestos pipe covering
industry on board naval vessels -- and Mr. Turner worked on
board a naval vessel, correct?
A Yes.
Q And they say, the character of the asbestos pipe covering
industry on board naval vessels is such that conclusions
drawn from other asbestos industries such as textiles cannot
be applied. Do you recall that conclusion they made?
A I do.
Q And then their final conclusion is they found three cases
of asbestosis, no cases of cancer, correct?
A That's what I recall, yes.
Q And they said, since each of the three cases of asbestosis
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had worked at an asbestos pipe covering in shipyards for more
than 20 years, it may be concluded that such pipe covering is
not a dangerous occupation. Was that their final conclusion?
A I believe that was the conclusion. And it was in the
context of the shipyards during World War II had achieved
five million particles per cubic foot.
Q Okay.
A Which was the recommendation of the 1938 report the jurors
heard about.
Q So they were saying they didn't find any cancers, correct?
A That's correct.
Q And they were saying if you stayed below five million
particles you would be safe?
A Yes.
Q All right.
Now, you estimated that Mr. -- if you had five million
particles of exposure, how would that convert to fibers? How
many fibers?
A It would be about 30 fibers per cc.
Q Okay. Thirty fibers. So they were saying, basically, if
you're below 30 fibers per cc they thought you were going to
be safe. That was the government's believe back then?
A That was deemed to be a tolerable occupational exposure
among generally healthy workers.
Q But your analysis, you don't conclude that Mr. Turner was
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exposed to more than 30 fibers per cc when he was in the
Navy, do you?
A No.
Q In fact, you conclude that he was exposed to just a
fraction of a fiber per cc on a time-weighted basis?
A While he's in the sonar room, that's correct.
Q How about if you average over the whole time he was there,
it was a fraction, right?
A I didn't do that. But it's probably -- if I used the
hypothetical that's in one place in the testimony, that for
several months while the ship was being decommissioned he was
below decks, then it's probably on the order of two fibers
per cc.
Q Well --
A If he was only below decks a few days, as is present in
other places in testimony, then it's a fraction of one fiber
per cc.
Q Okay. So the testimony the jury heard yesterday, when he
did the chipping of the paint, he was only down there for a
few days, and other work was already completed, then he would
have an exposure of fractions of a fiber of cc, correct?
A More likely than not, yes.
Q If that was the exposure you don't think that would place
him at an increased risk, do you?
A Because it was amosite in the Navy, and because it's a
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confined space, it's not a big steel mill where the winds off
the Sound are blowing through it and blowing the dust away, I
believe his exposure in the Navy was higher than any possible
exposure attributable to Ferro Engineering liner board.
Q You're telling this jury that the couple times he went
down there chipping paint when nobody else was working was
more dangerous to him than working in the Bethlehem Steel
mill?
A With regard to asbestos exposure and particularly the
asbestos that's related to Ferro liner board, yes.
Q And how many hours have you worked on this case to come up
with that opinion?
A I haven't totaled those, so I would estimate that it's
somewhere around 50 to 55.
Q At how much per hour?
A $350, sir.
Q What does that come out to be, $15,000, $20,000?
A Probably.
Q Plus your travel?
A Yes.
Q And when you were hired you knew the two opinions they
wanted from you were no exposure from his dad at the shipyard
and no exposure from Bethlehem Steel; is that correct, sir?
MS. GANT: Objection, Your Honor, that's
argumentative.
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THE COURT: Overruled. It's proper cross. He can
answer it.
A Nobody ever put it to me that way. And this is the same
firm that got a report of a significant exposure for one of
their defendants in the Reeve case. They know that they'll
get the numbers that come out of the equation, whether good
or bad.
Q Well, they weren't real happy with the other report you
gave them, were they?
A I'll let you ask them at dinner or something.
Q Okay.
A All I can say is they hired me for this case.
Q And your opinions actually have been excluded by some
judges in the State of Washington as being unreliable; is
that correct, sir?
A Not that I recall.
Q You don't recall that?
A I've never been told that.
Q You've never been told that. Okay.
Let me check my notes, here. So to conclude your
opinion, his work for the few times he went below decks on
the Navy was more dangerous in causing mesothelioma than his
work at the Bethlehem Steel steel mill, correct?
A Let me explain to the jury that he was also below decks to
eat, and he was below decks to sleep, while the ship was on
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the firing line. So he was below decks for many months, in
addition to the possible more intense exposure in the
shipyard refit environment.
Q Well, he didn't eat next to somebody working on
insulation, did he? Did he, sir?
A Usually not. But the fibers --
Q He didn't report that. He didn't report that, so let's
not speculate.
A I'm not speculating. Measurements in Navy ships show that
the fibers permeate all compartments in the ships. And in
the peer-reviewed literature you can look at Harry's
(phonetic) of 1971 to see that.
Q You believe asbestos fibers permeate whether it's on a
ship, a building in a school, or anything; is that correct?
A That is correct.
Q If asbestos fibers were being worked on in that corner,
it's your opinion it would permeate back to that corner,
correct?
A Given the eddy-diffusive ability of air circulation in the
room, they would, yes.
Q It's your opinion that the asbestos fibers at Bethlehem
Steel, blown by the wind off the Sound toward Mr. Turner,
would not have permeated toward him?
A That's not quite my opinion. It understates it.
Q Understates it?
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A Yes.
Q You don't believe he had any exposure -- in fact, you
testified that he had no exposure to asbestos at Bethlehem
Steel, in your opinion?
A I believe the asbestos in the liner board was encapsulated
until the liner board had been through its one-time use
cycle. And after that it wasn't asbestos.
Q It's your opinion, sir, that Mr. Turner had no exposure to
asbestos at Bethlehem Steel, is that correct, from any
source?
A My opinion is he had no exposure to asbestos associated
with the Ferro Engineering liner board.
Q Did he have any other exposure there?
A I haven't been asked, until this question, about other
sources.
Q Did he have any other exposures?
A There was testimony that he sometimes used asbestos mitts.
Q Mitts?
A Yes. Mittens to protect his hands while scarfing, for
example.
Q Was that dangerous?
A It would have a higher exposure, in my opinion, to
chrysotile fibers the way those mitts were normally
manufactured, than anything attributable to the Ferro liner
board.
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Q How about the asbestos cement?
MR. AMEELE: Objection, foundation.
THE COURT: Overruled. You may answer.
A If he mixed the asbestos cement in a year when it
contained asbestos fibers, in an open bucket or open
wheelbarrow, then he had some exposure to chrysotile fibers.
Q Chrysotile is the same thing those mitts are made out of,
right?
A Normally those mitts are chrysotile, that's correct.
Q And you believe that the -- if the amosite in the
Ferroboard did, in fact, become airborne in the breathing
zone of Mr. Turner, that would place him at a 200 times
increased risk over a similar exposure to chrysotile?
A If the concentrations were the same, yes.
MR. HART: Thank you, sir. That's all the questions
I have.
THE COURT: Redirect.
MS. GANT: Briefly, Your Honor.
REDIRECT EXAMINATION
BY MS. GANT:
Q Dr. Rock, Mr. Hart asked about any prior study of yours of
hot top materials. And I believe you testified that you had
not previously studied hot tops. Did I understand correctly?
A Yes.
Q Do the same basic principles of industrial hygiene apply
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to your analysis of hot tops as opposed to your analysis of
other potential occupational exposures?
A Yes.
Q Mr. Hart also asked you some questions about the potency
of amosite versus chrysotile fibers. Do you recall that?
A Potency for mesothelioma, yes.
Q And his questions were focused upon the knowledge in the
scientific community today. And I believe you started to
testify about the knowledge in the scientific community in
1969. What was the knowledge in the scientific community or
the general consensus in the scientific community in 1969
about the potency of those particular fibers?
A In 1972 Dr. Selikoff wrote an article in which he noted
that amosite was being used as a substitute for the other
kinds of asbestos, because it was not known to be a
carcinogen. And this trend started in Great Brittain.
Q Mr. Hart also asked you some questions about Ferro's
patent for Ferroboard liners. Do you recall that, sir?
A I do.
Q And a number of his questions were pertaining to the water
content in that Ferroboard liner. Do you recall that, sir?
A Yes.
Q Is there any information in that patent that changes your
analysis that, whether chrysotile or amosite, all asbestos
fibers detoxify at or above 900 degrees centigrade?
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A No. There is nothing that changes that. And I believe
that was Dr. Longo's number yesterday as well.
Q There was some questions about this one gram of asbestos
remaining after that hot top liner disintegrated. Do you
recall that, sir?
A I do.
Q Now, let's just say for the sake of a hypothetical that
somehow one gram of that liner remained. Would any asbestos
fibers in that one gram still have the same toxicity?
A In my opinion, no.
Q Why not?
A They've been heated and so they've been detoxified.
Q And if they remain and they're not forsterite, or these
other chemicals that you've testified about the conversion on
amosite, are they just somewhere else in that spectrum? Do I
understand that correctly?
Can you please testify to this, sir, instead of me
summarizing your opinions?
A In the theme where water is 6 percent of the fibers,
silica is more than half. And when they finally break down,
silica flour is a common outcome. Silica flour is very small
particles of silica, like beach sand, only very, very fine.
Silica flour is highly potent for other lung diseases, but
not mesothelioma. It's not a fiber. And then the rest of
it, you've got metals and all kinds of contaminants, products
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of combustion of the rest of the Ferroboard liner materials.
Q And so, again, assuming that somehow one gram of that
Ferroboard liner did not disintegrate after exposure to that
2,900 degree molten steel, would that one gram still have the
same potency with respect to mesothelioma?
A No. The potency when it was assembled at the factory
would have been much higher, if there's any potency remaining
in the steel mill.
Q And I believe that you also indicated that that one gram
would need to be aerosolized. Do I understand that
correctly?
A In order to inhale it, yes.
Q And just for purposes of making sure we're all using terms
in the same way, can you please explain your use of the term
aerosolized?
A Creating a cloud of respirable particles that you can
actually inhale.
Q So something that can go into your breathing zone, is that
accurate?
A Like cigarette smoke is an aerosolized form of the
combustion products of tobacco and cigarette paper.
Q Is there any evidence that you have seen in the record,
sir, that indicates that if that one gram of Ferroboard liner
did not disintegrate, that it would, in fact, have become
aerosolized?
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A I haven't seen anything that would constitute an
aerosolization mechanism.
MS. GANT: Thank you, that's all I have, Your Honor.
MR. HART: A couple to wrap up. You don't have any
questions? No questions?
MR. AMEELE: No.
RECROSS EXAMINATION
BY MR. HART:
Q Any question about the potency of the amosite after it
goes through the steel-making process is a function of the
heat that the amosite attains; is that correct, sir?
A It's a function of its temperature and the contact time of
that temperature, yes.
Q And your opinion is based on an understanding that you
understand that the Ferroboard liner is at 900 degrees or
higher; is that correct, sir?
A The coolest part, the outside part of the liner, yes.
Q And if the outside part of the liner is 750 degrees, then
not all of the outside part of the asbestos liner may change
to this other substance; is that fair?
A It's detoxified to a point of maybe 6 or 30 percent of its
original toxicity. But some of it may still look like, in
various tests, may still look like amosite.
Q And it's the part that remains amosite that is toxic,
correct?
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A So far as we can tell from available scientific data, yes.
Q And based on that x-ray diffraction analysis, when they
looked at amosite fibers heated to 750 degrees, and then
ground up and did that, they found a reduction by 50 percent
of the diffraction patterns of the amosite; is that correct?
A At that temperature, yes.
Q And they interpret that to mean half the amosite had
changed and half the amosite had not changed; is that
correct?
A I think that's the way the paper can be easily read, yes.
Q If half the amosite does remain in a Ferroboard liner,
that means it would be three percent, or amosite, instead of
6 percent?
A If it's the amosite formulation, yes.
Q Okay --
A In that portion of the liner that only reached those
temperatures.
Q Right. And if the portion of the liners that reached
750-degree temperatures, only -- would have some amosite
surviving, number one, correct? That's your understanding?
A I'll say there's reasonable -- the weight of evidence in
the literature is there might be some identifiable amosite.
I'm not sure it's still potent. But we don't have data on
that, so it's hard to say.
Q You don't have any scientific basis that it's not potent;
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is that correct? That's something you would like to see
studied before you, as an industrial hygienist, would
recommend that somebody breathe that dust?
A As I said earlier, I wouldn't recommend anybody breathe it
anyway.
Q Especially if it came from amosite that was heated only to
750 degrees?
A Truth be told, I'm more worried about carbon-based
cellulose-based things that generate --
Q Let's don't go there. I'm trying to get you out of here.
We're not talking about that. The amosite, you wouldn't
recommend anybody breathe that product because it would be a
risk, sir, if it contained half the amosite it started with?
A Yes. It's not a good idea to breathe carcinogens.
Q When OSHA regulated asbestos in 1972, they regulated
amosite, just like they regulated chrysotile, and just like
they regulated crocidolite?
MS. GANT: Objection. This is beyond the scope of
redirect.
MR. HART: It goes to the question about 1972 and
potency.
THE COURT: I'm going to sustain the objection.
Q You were asked a question about Dr. Selikoff in 1972 and
potency of amosite? Do you recall that?
A I do.
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Q Government agencies in 1972 did not recognize that amosite
was any less potent than other materials; is that correct?
A In 1972, with the OSHA standard, that's correct.
MR. HART: Thank you, sir. That's all I have, Your
Honor.
THE COURT: Thank you, sir. You may step down.
You're excused. And you can depart before they think of more
questions.
Ladies and gentlemen of the jury, I'll remind you not to
discuss the case over the weekend. You're ordered to have a
pleasant weekend and also asked firmly to come back and be
with us in the jury room by 9 o'clock on Monday morning.
Have a pleasant weekend, folks. Leave your notes in the jury
room.
(The proceedings recessed.)